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Florida Statute 408.809 on offenses to be prohibited by AHCA based on Level 2 Background Screening results

408.809 Background screening; prohibited offenses.—

 

(1) Level 2 background screening pursuant to chapter 435 must be conducted through the agency on each of the following persons, who are considered employees for the purposes of conducting screening under chapter 435:

 

(a) The licensee, if an individual.

(b) The administrator or a similarly titled person who is responsible for the day-to-day operation of the provider.

(c) The financial officer or similarly titled individual who is responsible for the financial operation of the licensee or provider.

(d) Any person who is a controlling interest if the agency has reason to believe that such person has been convicted of any offense prohibited by s. 435.04. For each controlling interest who has been convicted of any such offense, the licensee shall submit to the agency a description and explanation of the conviction at the time of license application.

(e) Any person, as required by authorizing statutes, seeking employment with a licensee or provider who is expected to, or whose responsibilities may require him or her to, provide personal care or services directly to clients or have access to client funds, personal property, or living areas; and any person, as required by authorizing statutes, contracting with a licensee or provider whose responsibilities require him or her to provide personal care or personal services directly to clients. Evidence of contractor screening may be retained by the contractor’s employer or the licensee.

 

(2) Every 5 years following his or her licensure, employment, or entry into a contract in a capacity that under subsection (1) would require level 2 background screening under chapter 435, each such person must submit to level 2 background rescreening as a condition of retaining such license or continuing in such employment or contractual status. For any such rescreening, the agency shall request the Department of Law Enforcement to forward the person’s fingerprints to the Federal Bureau of Investigation for a national criminal history record check. If the fingerprints of such a person are not retained by the Department of Law Enforcement under s. 943.05(2)(g), the person must file a complete set of fingerprints with the agency and the agency shall forward the fingerprints to the Department of Law Enforcement for state processing, and the Department of Law Enforcement shall forward the fingerprints to the Federal Bureau of Investigation for a national criminal history record check. The fingerprints may be retained by the Department of Law Enforcement under s. 943.05(2)(g). The cost of the state and national criminal history records checks required by level 2 screening may be borne by the licensee or the person fingerprinted. Proof of compliance with level 2 screening standards submitted within the previous 5 years to meet any provider or professional licensure requirements of the agency, the Department of Health, the Agency for Persons with Disabilities, the Department of Children and Family Services, or the Department of Financial Services for an applicant for a certificate of authority or provisional certificate of authority to operate a continuing care retirement community under chapter 651 satisfies the requirements of this section if the person subject to screening has not been unemployed for more than 90 days and such proof is accompanied, under penalty of perjury, by an affidavit of compliance with the provisions of chapter 435 and this section using forms provided by the agency.

 

(3) All fingerprints must be provided in electronic format. Screening results shall be reviewed by the agency with respect to the offenses specified in s. 435.04 and this section, and the qualifying or disqualifying status of the person named in the request shall be maintained in a database. The qualifying or disqualifying status of the person named in the request shall be posted on a secure website for retrieval by the licensee or designated agent on the licensee’s behalf.

 

(4) In addition to the offenses listed in s. 435.04, all persons required to undergo background screening pursuant to this part or authorizing statutes must not have an arrest awaiting final disposition for, must not have been found guilty of, regardless of adjudication, or entered a plea of nolo contendere or guilty to, and must not have been adjudicated delinquent and the record not have been sealed or expunged for any of the following offenses or any similar offense of another jurisdiction: 

 

(a) Any authorizing statutes, if the offense was a felony.

(b) This chapter, if the offense was a felony.

(c) Section 409.920, relating to Medicaid provider fraud.

(d) Section 409.9201, relating to Medicaid fraud.

(e) Section 741.28, relating to domestic violence.

(f)  Section 817.034, relating to fraudulent acts through mail, wire, radio, electromagnetic, photoelectronic, or photooptical systems.

(g) Section 817.234, relating to false and fraudulent insurance claims.

(h) Section 817.505, relating to patient brokering.

(i)  Section 817.568, relating to criminal use of personal identification information.

(j)  Section 817.60, relating to obtaining a credit card through fraudulent means.

(k)    Section 817.61, relating to fraudulent use of credit cards, if the offense was a felony.

(l)  Section 831.01, relating to forgery.

(m)  Section 831.02, relating to uttering forged instruments.

(n) Section 831.07, relating to forging bank bills, checks, drafts, or promissory notes.

(o) Section 831.09, relating to uttering forged bank bills, checks, drafts, or promissory notes.

(p) Section 831.30, relating to fraud in obtaining medicinal drugs.

(q) Section 831.31, relating to the sale, manufacture, delivery, or possession with the intent to sell, manufacture, or deliver any counterfeit controlled substance, if the offense was a felony.

 

A person who serves as a controlling interest of, is employed by, or contracts with a licensee on July 31, 2010, who has been screened and qualified according to standards specified in s. 435.03 or s. 435.04 must be rescreened by July 31, 2015. The agency may adopt rules to establish a schedule to stagger the implementation of the required rescreening over the 5-year period, beginning July 31, 2010, through July 31, 2015. If, upon rescreening, such person has a disqualifying offense that was not a disqualifying offense at the time of the last screening, but is a current disqualifying offense and was committed before the last screening, he or she may apply for an exemption from the appropriate licensing agency and, if agreed to by the employer, may continue to perform his or her duties until the licensing agency renders a decision on the application for exemption if the person is eligible to apply for an exemption and the exemption request is received by the agency within 30 days after receipt of the rescreening results by the person.

 

(5) The costs associated with obtaining the required screening must be borne by the licensee or the person subject to screening. Licensees may reimburse persons for these costs. The Department of Law Enforcement shall charge the agency for screening pursuant to s. 943.053(3). The agency shall establish a schedule of fees to cover the costs of screening.

 

(6)(a) As provided in chapter 435, the agency may grant an exemption from disqualification to a person who is subject to this section and who: 

 

1. Does not have an active professional license or certification from the Department of Health; or

2. Has an active professional license or certification from the Department of Health but is not providing a service within the scope of that license or certification.

 

(b) As provided in chapter 435, the appropriate regulatory board within the Department of Health, or the department itself if there is no board, may grant an exemption from disqualification to a person who is subject to this section and who has received a professional license or certification from the Department of Health or a regulatory board within that department and that person is providing a service within the scope of his or her licensed or certified practice.

 

(7) The agency and the Department of Health may adopt rules pursuant to ss. 120.536(1) and 120.54 to implement this section, chapter 435, and authorizing statutes requiring background screening and to implement and adopt criteria relating to retaining fingerprints pursuant to s. 943.05(2).

 

(8) There is no unemployment compensation or other monetary liability on the part of, and no cause of action for damages arising against, an employer that, upon notice of a disqualifying offense listed under chapter 435 or this section, terminates the person against whom the report was issued, whether or not that person has filed for an exemption with the Department of Health or the agency.

History.—s. 5, ch. 2006-192; s. 50, ch. 2009-223; s. 21, ch. 2010-114.

 

1Note.—Section 58, ch. 2010-114, provides that “[t]he changes made by this act are intended to be prospective in nature. It is not intended that persons who are employed or licensed on the effective date of this act be rescreened until such time as they are otherwise required to be rescreened pursuant to law, at which time they must meet the requirements for screening as set forth in this act.”

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How Does Live Scan Fingerprinting Work?

In the traditional method of fingerprinting, ink is applied to each of your fingers which are then “rolled” across a fingerprint card to obtain your prints. With electronic fingerprinting, there is no ink or card. Your fingerprints are “rolled” across a glass plate and scanned. It is faster and cleaner than the traditional method. Electronic fingerprinting reduces the likelihood of illegible fingerprints and will reduce the overall application processing time. Process is fairly simple and takes 5-10 minutes before you leave our office.

 

All applicants will be required to bring two (2) forms of identification to the electronic fingerprinting site on the day of scheduled fingerprinting. One of the two types of identification must bear your picture and signature such as a driver’s license, state identification card or passport.

 

The electronic fingerprint scanning machines are equipped to determine if your fingerprints scanned successfully; however, if it is determined by the Federal Bureau of Investigation that your prints were not legible, requesting state agency will send you a notification letter asking you to go back to the same vendor that did your initial prints and schedule a re-roll of your prints. You will be required to bring the notification letter with you as information such as the TCR (Transaction Control Reference) must be identified and used at the time of the reroll. IDENTICO will not charge another fee if the TCR numbers are supplied.

 

Your prints cannot be shared between professions or with other state agencies. You are required to have separate prints for each license or clearance you are applying for.

 

Please call us today at (954) 239-8590 with any questions. Best regards, Professional Screening Team of IDENTICO LLC.

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Florida Chapter 435 and State Requirements on Level 2 Background Screening

FLORIDA STATUTE-TITLE XXXI-LABOR-CHAPTER 435-EMPLOYMENT SCREENING

 

 

435.01 Applicability of this chapter; statutory references; rulemaking.

435.02 Definitions.

435.03 Level 1 screening standards.

435.04 Level 2 screening standards.

435.05 Requirements for covered employees and employers.

435.06 Exclusion from employment.

435.07 Exemptions from disqualification.

435.08 Payment for processing of fingerprints and state criminal records checks.

435.09 Confidentiality of personnel background check information.

435.10 Sharing of personnel information among employers.

435.11 Penalties.

 

1435.01 Applicability of this chapter; statutory references; rulemaking.—

 

(1)(a) Unless otherwise provided by law, whenever a background screening for employment or a background security check is required by law to be conducted pursuant to this chapter, the provisions of this chapter apply.

(b) Unless expressly provided otherwise, a reference in any section of the Florida Statutes to chapter 435 or to any section or sections or portion of a section of chapter 435 includes all subsequent amendments to chapter 435 or to the referenced section or sections or portions of a section. The purpose of this chapter is to facilitate uniform background screening and, to this end, a reference to this chapter, or to any section or subdivision within this chapter, constitutes a general reference under the doctrine of incorporation by reference.

 

(2) Agencies may adopt rules to administer this chapter.

History.—s. 47, ch. 95-228; s. 35, ch. 2010-114.

1Note.—Section 58, ch. 2010-114, provides that “[t]he changes made by this act are intended to be prospective in nature. It is not intended that persons who are employed or licensed on the effective date of this act be rescreened until such time as they are otherwise required to be rescreened pursuant to law, at which time they must meet the requirements for screening as set forth in this act.”

 

1435.02 Definitions.—For the purposes of this chapter, the term:

(1) “Agency” means any state, county, or municipal agency that grants licenses or registration permitting the operation of an employer or is itself an employer or that otherwise facilitates the screening of employees pursuant to this chapter. If there is no state agency or the municipal or county agency chooses not to conduct employment screening, “agency” means the Department of Children and Family Services.

(2) “Employee” means any person required by law to be screened pursuant to this chapter.

(3) “Employer” means any person or entity required by law to conduct screening of employees pursuant to this chapter.

(4) “Employment” means any activity or service sought to be performed by an employee which requires the employee to be screened pursuant to this chapter.

(5) “Vulnerable person” means a minor as defined in s. 1.01 or a vulnerable adult as defined in s. 415.102.

History.—s. 47, ch. 95-228; s. 207, ch. 99-8; s. 36, ch. 2010-114.

1Note.—Section 58, ch. 2010-114, provides that “[t]he changes made by this act are intended to be prospective in nature. It is not intended that persons who are employed or licensed on the effective date of this act be rescreened until such time as they are otherwise required to be rescreened pursuant to law, at which time they must meet the requirements for screening as set forth in this act.”

 

1435.03 Level 1 screening standards.—

 

(1) All employees required by law to be screened pursuant to this section must undergo background screening as a condition of employment and continued employment which includes, but need not be limited to, employment history checks and statewide criminal correspondence checks through the Department of Law Enforcement, 2and a check of the Dru Sjodin National Sex Offender Public Website, and may include local criminal records checks through local law enforcement agencies.

 

(2) Any person required by law to be screened pursuant to this section must not have an arrest awaiting final disposition, must not have been found guilty of, regardless of adjudication, or entered a plea of nolo contendere or guilty to, and must not have been adjudicated delinquent and the record has not been sealed or expunged for, any offense prohibited under s. 435.04(2) or similar law of another jurisdiction.

 

(3) The security background investigations under this section must ensure that no person subject to this section has been found guilty of, regardless of adjudication, or entered a plea of nolo contendere or guilty to, any offense that constitutes domestic violence as defined in s. 741.28, whether such act was committed in this state or in another jurisdiction.

 

History.—s. 47, ch. 95-228; s. 15, ch. 96-268; s. 21, ch. 96-322; s. 3, ch. 98-417; s. 87, ch. 2000-153; s. 45, ch. 2000-349; s. 62, ch. 2001-62; s. 50, ch. 2003-1; s. 4, ch. 2004-267; s. 3, ch. 2005-119; s. 89, ch. 2006-197; s. 61, ch. 2006-227; s. 109, ch. 2007-5; s. 16, ch. 2008-244; s. 37, ch. 2010-114.

 

1Note.—Section 58, ch. 2010-114, provides that “[t]he changes made by this act are intended to be prospective in nature. It is not intended that persons who are employed or licensed on the effective date of this act be rescreened until such time as they are otherwise required to be rescreened pursuant to law, at which time they must meet the requirements for screening as set forth in this act.”

2Note.—The word “and” was inserted by the editors.

 

1435.04 Level 2 screening standards.—

 

(1)(a) All employees required by law to be screened pursuant to this section must undergo security background investigations as a condition of employment and continued employment which includes, but need not be limited to, fingerprinting for statewide criminal history records checks through the Department of Law Enforcement, and national criminal history records checks through the Federal Bureau of Investigation, and may include local criminal records checks through local law enforcement agencies.

 

(b) Fingerprints submitted pursuant to this section on or after July 1, 2012, must be submitted electronically to the Department of Law Enforcement.

 

(c) An agency may contract with one or more vendors to perform all or part of the electronic fingerprinting pursuant to this section. Such contracts must ensure that the owners and personnel of the vendor performing the electronic fingerprinting are qualified and will ensure the integrity and security of all personal information.

 

(d) An agency may require by rule that fingerprints submitted pursuant to this section must be submitted electronically to the Department of Law Enforcement on a date earlier than July 1, 2012.

 

(2) The security background investigations under this section must ensure that no persons subject to the provisions of this section have been arrested for and are awaiting final disposition of, have been found guilty of, regardless of adjudication, or entered a plea of nolo contendere or guilty to, or have been adjudicated delinquent and the record has not been sealed or expunged for, any offense prohibited under any of the following provisions of state law or similar law of another jurisdiction:

(a) Section 393.135, relating to sexual misconduct with certain developmentally disabled clients and reporting of such sexual misconduct.

(b) Section 394.4593, relating to sexual misconduct with certain mental health patients and reporting of such sexual misconduct.

(c) Section 415.111, relating to adult abuse, neglect, or exploitation of aged persons or disabled adults.

(d) Section 782.04, relating to murder.

(e) Section 782.07, relating to manslaughter, aggravated manslaughter of an elderly person or disabled adult, or aggravated manslaughter of a child.

(f) Section 782.071, relating to vehicular homicide.

(g) Section 782.09, relating to killing of an unborn quick child by injury to the mother.

(h) Chapter 784, relating to assault, battery, and culpable negligence, if the offense was a felony.

(i) Section 784.011, relating to assault, if the victim of the offense was a minor.

(j) Section 784.03, relating to battery, if the victim of the offense was a minor.

(k) Section 787.01, relating to kidnapping.

(l) Section 787.02, relating to false imprisonment.

(m) Section 787.025, relating to luring or enticing a child.

(n) Section 787.04(2), relating to taking, enticing, or removing a child beyond the state limits with criminal intent pending custody proceedings.

(o) Section 787.04(3), relating to carrying a child beyond the state lines with criminal intent to avoid producing a child at a custody hearing or delivering the child to the designated person.

(p) Section 790.115(1), relating to exhibiting firearms or weapons within 1,000 feet of a school.

(q) Section 790.115(2)(b), relating to possessing an electric weapon or device, destructive device, or other weapon on school property.

(r) Section 794.011, relating to sexual battery.

(s) Former s. 794.041, relating to prohibited acts of persons in familial or custodial authority.

(t) Section 794.05, relating to unlawful sexual activity with certain minors.

(u) Chapter 796, relating to prostitution.

(v) Section 798.02, relating to lewd and lascivious behavior.

(w) Chapter 800, relating to lewdness and indecent exposure.

(x) Section 806.01, relating to arson.

(y) Section 810.02, relating to burglary.

(z) Section 810.14, relating to voyeurism, if the offense is a felony.

(aa) Section 810.145, relating to video voyeurism, if the offense is a felony.

(bb) Chapter 812, relating to theft, robbery, and related crimes, if the offense is a felony.

(cc) Section 817.563, relating to fraudulent sale of controlled substances, only if the offense was a felony.

(dd) Section 825.102, relating to abuse, aggravated abuse, or neglect of an elderly person or disabled adult.

(ee) Section 825.1025, relating to lewd or lascivious offenses committed upon or in the presence of an elderly person or disabled adult.

(ff) Section 825.103, relating to exploitation of an elderly person or disabled adult, if the offense was a felony.

(gg) Section 826.04, relating to incest.

(hh) Section 827.03, relating to child abuse, aggravated child abuse, or neglect of a child.

(ii) Section 827.04, relating to contributing to the delinquency or dependency of a child.

(jj) Former s. 827.05, relating to negligent treatment of children.

(kk) Section 827.071, relating to sexual performance by a child.

(ll) Section 843.01, relating to resisting arrest with violence.

(mm) Section 843.025, relating to depriving a law enforcement, correctional, or correctional probation officer means of protection or communication.

(nn) Section 843.12, relating to aiding in an escape.

(oo) Section 843.13, relating to aiding in the escape of juvenile inmates in correctional institutions.

(pp) Chapter 847, relating to obscene literature.

(qq) Section 874.05(1), relating to encouraging or recruiting another to join a criminal gang.

(rr) Chapter 893, relating to drug abuse prevention and control, only if the offense was a felony or if any other person involved in the offense was a minor.

(ss) Section 916.1075, relating to sexual misconduct with certain forensic clients and reporting of such sexual misconduct.

(tt) Section 944.35(3), relating to inflicting cruel or inhuman treatment on an inmate resulting in great bodily harm.

(uu) Section 944.40, relating to escape.

(vv) Section 944.46, relating to harboring, concealing, or aiding an escaped prisoner.

(ww) Section 944.47, relating to introduction of contraband into a correctional facility.

(xx) Section 985.701, relating to sexual misconduct in juvenile justice programs.

(yy) Section 985.711, relating to contraband introduced into detention facilities.

(3) The security background investigations under this section must ensure that no person subject to this section has been found guilty of, regardless of adjudication, or entered a plea of nolo contendere or guilty to, any offense that constitutes domestic violence as defined in s. 741.28, whether such act was committed in this state or in another jurisdiction.

History.—s. 47, ch. 95-228; s. 16, ch. 96-268; s. 22, ch. 96-322; s. 4, ch. 98-417; s. 5, ch. 99-284; s. 88, ch. 2000-153; s. 7, ch. 2001-125; s. 5, ch. 2004-267; s. 4, ch. 2005-119; s. 111, ch. 2006-120; s. 90, ch. 2006-197; s. 110, ch. 2007-5; s. 3, ch. 2007-112; s. 66, ch. 2009-223; s. 6, ch. 2010-31; s. 38, ch. 2010-114.

1Note.—Section 58, ch. 2010-114, provides that “[t]he changes made by this act are intended to be prospective in nature. It is not intended that persons who are employed or licensed on the effective date of this act be rescreened until such time as they are otherwise required to be rescreened pursuant to law, at which time they must meet the requirements for screening as set forth in this act.”

1435.05 Requirements for covered employees and employers.—Except as otherwise provided by law, the following requirements apply to covered employees and employers:

 

(1)(a) Every person required by law to be screened pursuant to this chapter must submit a complete set of information necessary to conduct a screening under this chapter.

 

(b) For level 1 screening, the employer must submit the information necessary for screening to the Department of Law Enforcement within 5 working days after receiving it. The Department of Law Enforcement shall conduct a search of its records and respond to the employer or agency. The employer must inform the employee whether screening has revealed any disqualifying information.

 

(c) For level 2 screening, the employer or agency must submit the information necessary for screening to the Department of Law Enforcement within 5 working days after receiving it. The Department of Law Enforcement shall perform a criminal history record check of its records and request that the Federal Bureau of Investigation perform a national criminal history record check of its records for each employee for whom the request is made. The Department of Law Enforcement shall respond to the employer or agency, and the employer or agency must inform the employee whether screening has revealed disqualifying information.

 

(d) The person whose background is being checked must supply any missing criminal or other necessary information upon request to the requesting employer or agency within 30 days after receiving the request for the information.

 

(2) Every employee must attest, subject to penalty of perjury, to meeting the requirements for qualifying for employment pursuant to this chapter and agreeing to inform the employer immediately if arrested for any of the disqualifying offenses while employed by the employer.

 

(3) Each employer licensed or registered with an agency must conduct level 2 background screening and must submit to the agency annually or at the time of license renewal, under penalty of perjury, a signed affidavit attesting to compliance with the provisions of this chapter.

 

History.—s. 47, ch. 95-228; s. 208, ch. 99-8; s. 46, ch. 2000-349; s. 63, ch. 2001-62; s. 21, ch. 2004-267; s. 67, ch. 2009-223; s. 39, ch. 2010-114.

 

1Note.—Section 58, ch. 2010-114, provides that “[t]he changes made by this act are intended to be prospective in nature. It is not intended that persons who are employed or licensed on the effective date of this act be rescreened until such time as they are otherwise required to be rescreened pursuant to law, at which time they must meet the requirements for screening as set forth in this act.”

1435.06 Exclusion from employment.—

 

(1) If an employer or agency has reasonable cause to believe that grounds exist for the denial or termination of employment of any employee as a result of background screening, it shall notify the employee in writing, stating the specific record that indicates noncompliance with the standards in this chapter. It is the responsibility of the affected employee to contest his or her disqualification or to request exemption from disqualification. The only basis for contesting the disqualification is proof of mistaken identity.

 

(2)(a) An employer may not hire, select, or otherwise allow an employee to have contact with any vulnerable person that would place the employee in a role that requires background screening until the screening process is completed and demonstrates the absence of any grounds for the denial or termination of employment. If the screening process shows any grounds for the denial or termination of employment, the employer may not hire, select, or otherwise allow the employee to have contact with any vulnerable person that would place the employee in a role that requires background screening unless the employee is granted an exemption for the disqualification by the agency as provided under s. 435.07.

 

(b) If an employer becomes aware that an employee has been arrested for a disqualifying offense, the employer must remove the employee from contact with any vulnerable person that places the employee in a role that requires background screening until the arrest is resolved in a way that the employer determines that the employee is still eligible for employment under this chapter.

 

(c) The employer must terminate the employment of any of its personnel found to be in noncompliance with the minimum standards of this chapter or place the employee in a position for which background screening is not required unless the employee is granted an exemption from disqualification pursuant to s. 435.07.

 

(3) Any employee who refuses to cooperate in such screening or refuses to timely submit the information necessary to complete the screening, including fingerprints if required, must be disqualified for employment in such position or, if employed, must be dismissed.

 

(4) There is no unemployment compensation or other monetary liability on the part of, and no cause of action for damages against, an employer that, upon notice of a conviction or arrest for a disqualifying offense listed under this chapter, terminates the person against whom the report was issued or who was arrested, regardless of whether or not that person has filed for an exemption pursuant to this chapter.

 

History.—s. 47, ch. 95-228; s. 40, ch. 2010-114.

 

1Note.—Section 58, ch. 2010-114, provides that “[t]he changes made by this act are intended to be prospective in nature. It is not intended that persons who are employed or licensed on the effective date of this act be rescreened until such time as they are otherwise required to be rescreened pursuant to law, at which time they must meet the requirements for screening as set forth in this act.”

 

1435.07 Exemptions from disqualification.—Unless otherwise provided by law, the provisions of this section apply to exemptions from disqualification for disqualifying offenses revealed pursuant to background screenings required under this chapter, regardless of whether those disqualifying offenses are listed in this chapter or other laws.

 

(1) The head of the appropriate agency may grant to any employee otherwise disqualified from employment an exemption from disqualification for:

 

(a) Felonies for which at least 3 years have elapsed since the applicant for the exemption has completed or been lawfully released from confinement, supervision, or sanction for the disqualifying felony;

(b) Misdemeanors prohibited under any of the statutes cited in this chapter or under similar statutes of other jurisdictions for which the applicant for the exemption has completed or been lawfully released from confinement, supervision, or sanction;

(c) Offenses that were felonies when committed but that are now misdemeanors and for which the applicant for the exemption has completed or been lawfully released from confinement, supervision, or sanction; or

(d) Findings of delinquency. For offenses that would be felonies if committed by an adult and the record has not been sealed or expunged, the exemption may not be granted until at least 3 years have elapsed since the applicant for the exemption has completed or been lawfully released from confinement, supervision, or sanction for the disqualifying offense.

For the purposes of this subsection, the term “felonies” means both felonies prohibited under any of the statutes cited in this chapter or under similar statutes of other jurisdictions.

(2) Persons employed, or applicants for employment, by treatment providers who treat adolescents 13 years of age and older who are disqualified from employment solely because of crimes under s. 817.563, s. 893.13, or s. 893.147 may be exempted from disqualification from employment pursuant to this chapter without application of the waiting period in paragraph (1)(a).

 

(3)(a) In order for the head of an agency to grant an exemption to any employee, the employee must demonstrate by clear and convincing evidence that the employee should not be disqualified from employment. Employees seeking an exemption have the burden of setting forth clear and convincing evidence of rehabilitation, including, but not limited to, the circumstances surrounding the criminal incident for which an exemption is sought, the time period that has elapsed since the incident, the nature of the harm caused to the victim, and the history of the employee since the incident, or any other evidence or circumstances indicating that the employee will not present a danger if employment or continued employment is allowed.

 

(b) The agency may consider as part of its deliberations of the employee’s rehabilitation the fact that the employee has, subsequent to the conviction for the disqualifying offense for which the exemption is being sought, been arrested for or convicted of another crime, even if that crime is not a disqualifying offense.

 

(c) The decision of the head of an agency regarding an exemption may be contested through the hearing procedures set forth in chapter 120. The standard of review by the administrative law judge is whether the agency’s intended action is an abuse of discretion.

 

(4)(a) Disqualification from employment under this chapter may not be removed from, nor may an exemption be granted to, any personnel who is found guilty of, regardless of adjudication, or who has entered a plea of nolo contendere or guilty to, any felony covered by s. 435.03 or s. 435.04 solely by reason of any pardon, executive clemency, or restoration of civil rights.

 

(b) Disqualification from employment under this chapter may not be removed from, nor may an exemption be granted to, any person who is a:

1. Sexual predator as designated pursuant to s. 775.21;

2. Career offender pursuant to s. 775.261; or

3. Sexual offender pursuant to s. 943.0435, unless the requirement to register as a sexual offender has been removed pursuant to s. 943.04354.

 

(5) Exemptions granted by one agency shall be considered by subsequent agencies, but are not binding on the subsequent agency.

History.—s. 47, ch. 95-228; s. 47, ch. 2000-349; s. 64, ch. 2001-62; s. 29, ch. 2004-267; s. 9, ch. 2005-128; s. 41, ch. 2010-114.

1Note.—Section 58, ch. 2010-114, provides that “[t]he changes made by this act are intended to be prospective in nature. It is not intended that persons who are employed or licensed on the effective date of this act be rescreened until such time as they are otherwise required to be rescreened pursuant to law, at which time they must meet the requirements for screening as set forth in this act.”

 

1435.08 Payment for processing of fingerprints and state criminal records checks.—The employer or the employee is responsible for paying the costs of screening. Payment shall be submitted to the Department of Law Enforcement with the request for screening. The appropriate agency is responsible for collecting and paying any fee related to fingerprints retained on its behalf to the Department of Law Enforcement for costs resulting from the fingerprint information retention services. The amount of the annual fee and procedures for the submission and retention of fingerprint information and for the dissemination of search results shall be established by rule of the Department of Law Enforcement.

 

History.—s. 47, ch. 95-228; s. 209, ch. 99-8; s. 48, ch. 2000-349; s. 42, ch. 2010-114.

1Note.—Section 58, ch. 2010-114, provides that “[t]he changes made by this act are intended to be prospective in nature. It is not intended that persons who are employed or licensed on the effective date of this act be rescreened until such time as they are otherwise required to be rescreened pursuant to law, at which time they must meet the requirements for screening as set forth in this act.”

 

435.09 Confidentiality of personnel background check information.—No criminal or juvenile information obtained under this section may be used for any purpose other than determining whether persons meet the minimum standards for employment or for an owner or director of a covered service provider. The criminal records and juvenile records obtained by the department or by an employer are exempt from s. 119.07(1).

 

History.—s. 47, ch. 95-228; s. 282, ch. 96-406; s. 49, ch. 2000-349.

435.10 Sharing of personnel information among employers.—Every employer of employees covered by this chapter shall furnish copies of personnel records for employees or former employees to any other employer requesting this information pursuant to this section. Information contained in the records may include, but is not limited to, disciplinary matters and any reason for termination. Any employer releasing such records pursuant to this chapter shall be considered to be acting in good faith and may not be held liable for information contained in such records, absent a showing that the employer maliciously falsified such records.

 

History.—s. 47, ch. 95-228.

435.11 Penalties.—

(1) It is a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083, for any person willfully, knowingly, or intentionally to:

(a) Fail, by false statement, misrepresentation, impersonation, or other fraudulent means, to disclose in any application for voluntary or paid employment a material fact used in making a determination as to such person’s qualifications for a position of special trust.

(b) Use records information for purposes other than screening for employment or release records information to other persons for purposes other than screening for employment.

(2) It is a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084, for any person willfully, knowingly, or intentionally to use juvenile records information for any purposes other than specified in this section or to release such information to other persons for purposes other than specified in this section.

History.—s. 47, ch. 95-228; s. 283, ch. 96-406.

 

 

Categories
AHCA Background Screening DCF Background Screening Department of Health Background Screening

Fingerprinting and Criminal History Check for Florida Medicaid Providers’ Enrollment

Criminal History Requirements

Criminal history checks are required for both enrolling and re-enrolling Medicaid providers. The following individuals in each provider organization are required to have criminal history checks:

All partners or shareholders with an ownership interest of five percent or more;
All officers (this includes the president, vice president, etc.);
All directors (this is the board of directors);
Financial records custodian;
All billing agents;
All managing employees or affiliated persons, including pharmacy managers;
All individuals authorized to sign on the account used for electronic funds transfer.

If individuals belong to more than one of the above categories, they only require one criminal history check.

 

Fingerprint Cards Requirements

The criminal history check is conducted based on the applicants’ fingerprints. Applicants are required to submit a copy of their fingerprints on the fingerprint card included in the Florida Medicaid Provider Enrollment Application package.Providers may not use other types of fingerprint cards. Additional cards can be obtained from the fiscal agent or any area Medicaid office.

 

Payment for Criminal History Check

Provider applicants are required to submit a check made payable to the Agency for Health Care Administration for each fingerprint card submitted with the Enrollment Application.

 

Criminal History Check Process

The fiscal agent submits the fingerprint cards to FDLE. FDLE conducts a state criminal-background investigation that is called a Level 1 check. FDLE forwards the fingerprints to the FBI for a national criminal-history record check. This is called a Level 2 check.

 

Rejected Fingerprint Cards

Applicant fingerprint cards that are rejected by the FBI will be returned directly to Medicaid Contract Management. Rejected fingerprint cards will be accompanied by a United States Department of Justice Form 1-17 A, Rev 5-2-96, or Form 1-12, Rev 4-28-97, that lists the various reasons a fingerprint card may be rejected. If a fingerprint card is rejected, it will be necessary for the applicant to submit a new fingerprint card.

 

In order to preclude duplicate payments and to receive a complete FBI record, the applicant must submit the rejected fingerprint card along with a new fingerprint card to Medicaid. If the second card is rejected and returned by the FBI, additional payment will be required before a third submission. Failure to successfully submit a new fingerprint card may result in denial of a pending enrollment or termination of an active provider.

 

Exemption For Board Members

Board members of a not-for-profit corporation or organization are exempt from the criminal history check if they meet all of the following criteria:
Serve solely in a voluntary capacity; Do not regularly take part in the day-to-day operational decisions of the corporation or organization; Receive no remuneration from the corporation or organization for their service on the board of directors; Have no financial interest in the corporation or organization; and Have no family members with financial interest in the corporation or organization.

 

To obtain the exemption, the corporation or organization must submit a NonProfit Organization Volunteer Board Member Affidavit for Exemption from Medicaid Criminal History Checks along with a list of the board members’ names and social security numbers. The Non-Profit Organization Volunteer Board Member Affidavit for Exemption from Medicaid Criminal History Checks is an attachment to the Florida Medicaid Provider Enrollment Application, AHCA Form 2200-0003, F.A.C.

 

Note: A Non-Profit Organization Volunteer Board Member Affidavit for Exemption from Medicaid Criminal History Checks may be obtained from the Medicaid fiscal agent by calling Provider Enrollment at 800-289-7799 and selecting Option 4 or by downloading the form from the Medicaid fiscal agent’s Web Portal at http://mymedicaid-florida.com. Click on Public Information for Providers, then on Provider Support, and then on Enrollment.

 

Exemption for Providers

The following providers are exempt from the criminal history check:

Hospitals licensed under Chapter 395, Florida Statutes. (This exemption does not apply to the physicians’ groups, laboratories, pharmacies, or other non-institutional providers that are not licensed under Chapter 395, but are owned by or affiliated with the hospital.)

 

Nursing facilities, hospices, assisted living facilities, and adult family care homes licensed under Chapter 400, Florida Statutes. (This exemption does not apply to the physicians’ groups, laboratories, pharmacies, durable medical equipment companies or other non-institutional providers not licensed under Chapter 400, but are owned by or affiliated with the nursing facilities, hospices and assisted living facilities.)

 

School districts.
Units of local government. (This exemption does not apply to nongovernmental providers and entities that contract with the local government to provide Medicaid services. The contracted entities are responsible for the cost of the criminal history checks for all applicable staff and management.)

 

Any business that derives more than 50 percent of its revenue from the sale of goods to the final consumer AND either the business or its
controlling parent is required to file a form 10-K or similar statement with the Securities and Exchange Commission OR the business has a net
worth of $50 million or more. (This exception is designed primarily to exclude large pharmaceutical companies. The business must submit its
annual report including audited financial statements or 10-K Form with the exemption request.)

 

To obtain the exemption, the provider must submit an FDLE Criminal History Check and Fingerprinting Exemption Request. The FDLE Criminal History Check and Fingerprinting Exemption Request is an attachment to the Florida Medicaid Provider Enrollment Application, AHCA Form 2200-0003, which is incorporated by reference in 59G-5.010, F.A.C.

 

Note: An Exemption Request form may be obtained from the Medicaid fiscal agent by calling Provider Enrollment at 800-289-7799 and selecting Option 4 or by downloading the form from the Medicaid fiscal agent’s Web Portal at http://mymedicaid-florida.com. Click on Public Information for Providers, then on Provider Support, and then on Enrollment.

 

Exemption for Government Entities with Previous Criminal History Checks

If a government agency or government-owned facility already obtains criminal history checks on its employees, Medicaid does not require another check if the following criteria are met:
The government agency or government-owned facility submits documentation in the form of a letter or official form from the screening agency, which specifies the applicant’s name and dates of the FDLE and FBI criminal history checks;
The previously completed criminal history check is no more than 12 months old as of the date of receipt of the application; and Medicaid reserves the right, on a case-by-case basis, to reject any criminal history check deemed questionable, or to require that a new criminal history check be completed and the appropriate fee submitted to cover payment required by FDLE.
Criminal history check exemption policies for government agencies apply to hospital taxing districts, such as the North Broward Hospital District; state agencies, such as county health departments; and state university system facilities, such as the University of Florida, Shands Teaching  Hospital.

 

Exemption for DCF License

Criminal history checks are not required for medical foster care or private transportation providers who have a Florida Department of Children and Families license.

 

Exemption for Physicians, RNs and ARNPs

Criminal history checks are not required for physicians, podiatrists, chiropractors, registered nurses, and advanced registered nurse  practitioners who are currently licensed through the Florida Department of Health (DOH). If an Alabama or Georgia provider is designated as an in-state provider and has a current Florida DOH license, then a criminal history check is not required. However, if the provider does not have a valid Florida DOH license; then a fingerprint card and a criminal history check is required.

 

Criminal History Check by Other Agencies

Medicaid accepts criminal history checks conducted by other Florida agencies or departments that have been completed within 12 months of receipt of the application. The provider must submit a letter or official form from the agency that conducted the criminal history check with the Enrollment Application. The letter or form must specify the applicant’s name, Social Security Number, date the criminal history check was completed, the level of the screening and the results. Medicaid Provider Enrollment will review the information and approve or deny
the application.

 

At this time Florida Medicaid Provider Enrollment is managed by third party vendor -HP. The submission of fingerprints for Medicaid Provider Services Level 2 Background Check is allowed by two methods. IDENTICO LLC– is FDLE approved live scan vendor provides physicians’ groups, laboratories, pharmacies and other non-institutional providers that are not licensed under Chapter 395, but are owned by or affiliated with the hospital, with solutions to comply with fingerprinting and background screening requirements of Medicaid Enrollment.

 

a)     We can collect and submit fingerprints electronically on our Live Scan Equipment, at your location or ours. This way fingerprint cards are not required, we provide all necessary prove of individuals transaction records, including the TCN numbers. The cost of such screening is $54.25/person, you don’t have to send $43.25 check to AHCA, and this fee is included in our rate. Traveling fees may apply for mobile fingerprinting appointments.

 

b)      We can capture fingerprints old fashion way on hard-copy fingerprint card. The client has to provide us specifically pre-printed cards made exclusively for Medicaid Provider Services. Such fingerprint cards can be requested from Medicaid Enrollment. The fee is $15/card, you would have to attach $43.25 fee payable to AHCA along with your enrollment application and the card. Traveling fees may apply for mobile fingerprinting appointments. Hard copy method is recommended for individuals with poor quality fingerprints, such prints have a high change to be denied by FBI as illegible.

 

Please contact us for more information. Visit our official website www.myidentico.com or call us today (954) 239-8590. We have an open door policy at our office located at 3948 Pembroke Road, Suite E, Pembroke Park, FL, 33021, however if you would like to schedule an appointment at certain time, please visit http://www.myidentico.com/hitappoint/ and we’ll serve you first regardless of any wait line.

 

Mobile unit appointments need to be scheduled by phone only .

Categories
AHCA Background Screening APD Background Screening DCF Background Screening

Level 2 Background Screening for Hospitals in Florida

The chief compliant officer for one of the Florida’s largest Health Care networks contacted us and requested more information about options on how hospital staff can be fingerprinted as part of Level 2 Background Screening.

 

Currently the Level 2 Background Clearance is required by AHCA only for hospital staff working within mental health or psychiatric units, hospitals’ CEO and CFO. However, we wanted to provide our potential client with all possible options, especially counting that network includes several children’s hospitals and NICU units.

 

The Letter

Dear, South Florida’s Leading Health Care Network.

We wanted to make a sufficiently broad research, including advice from a legal consultant before we responded with set of solutions IDENTICO may offer to your organization which includes numerous hospitals.

The answers were in FAQ format, and we decided to share it will all readers who may find these solutions interesting and appropriate for own healthcare facility.

 

1.      What does Level 2 Background Check refers to?

 

Level 2 Background Check is the term used in Florida Statutes to convey the method of the criminal history record check and the extent of the data searched. However, the terms may also refer to certain disqualifying offenses if certain statutes are referenced. Level 2 is the term that pertains only to Florida and is not used by the FBI or other states. They are defined in Chapter 435, Florida Statutes (F.S.), but are used elsewhere in statute without definition and appear not to be associated with all of the provisions in Chapter 435, F.S.

Level 2 generally refers to a state and national fingerprint based check and consideration of disqualifying offenses, and applies to those employees designated by law as holding positions of responsibility or trust. Section 435.04, F.S., mandates Level 2 security background investigations are conducted on employees, defined as individuals required by law to be fingerprinted pursuant to Chapter 435, F.S.

 

It should be noted that both the state and national criminal history databases can be searched for arrests, warrants, and other information pertaining to an individual. However, neither database has the capability of searching for specific offenses within an individual record.

 

2.      Is there a presumption against negligent hiring when an employer conducts a background investigation of a prospective employee?

 

Yes. Pursuant to Section 768.096, F.S., in the case of an intentional tort, an employer is presumed not to have been negligent in hiring an employee if before hiring the employee, the employer conducted a background investigation of the prospective employee and the information did not reveal any information that reasonably demonstrated unsuitability of the prospective employee for the work to be performed or for general employment. The background investigation must include a criminal background investigation.

The statute specifically provides if an employer requests and obtains from FDLE a state criminal history record check; the employer has satisfied the criminal background investigation requirement for the presumption.

 

3.      What are the requirements for a national criminal history record check?

 

National Check: The following must be in place, as required by the FBI, to receive a national criminal history record check:

 

  • A statute must exist as a result of a legislative enactment;
  • It must require the fingerprinting of applicants who are subject to a national criminal history record check;
  • It must expressly (“submit to the FBI”) or by implication (“submit for a national check”) authorize the use of FBI records for the screening of applicants;
  • It must identify the specific category(ies) of licensees/employees falling within its authority;
  • It must not be against public policy;
  • It may not authorize receipt of the criminal history record information by a private entity;
  • The recipient of the criminal history record check results must be a governmental entity;
  • The entity must sign a User Agreement indicating it will comply with the terms and conditions set forth in rule by the FBI; and
  • The fingerprint submission must be first processed through the state repository for a search of its records.

 

4.      What information from a state and national criminal history background check can be disclosed to a private employer?

 

Pursuant to federal law, regulatory and employing agencies may not share any information obtained from a state and national criminal history record check with a private entity. However, these agencies can indicate whether or not the person is eligible for licensing or employment based on their established criteria. Prior to being granted access to the records, authorized agencies must sign a Criminal Justice or Non-Criminal Justice User Agreement with FDLE agreeing to abide by state and federal law.

 

5.      Can a copy of the FDLE and FBI criminal record be provided to applicants if they are denied employment, licensing, or the opportunity to volunteer?

 

Yes. Applicants may be shown their own criminal record. A copy may also be provided, however, applicants must be cautioned the record may not be used for any other purpose. Applicants are not allowed to provide a copy of the record to any other organization.

 

6.      Is sealed or expunged information released as part of a criminal history record check?

 

Sealed information is disseminated only to those agencies authorized by provisions in Section 943.059, F.S. Agencies not specified in the statutes are not provided sealed criminal history information. Expunged criminal history information is not disseminated. However, a notification that a record has been expunged is provided to agencies consistent with provisions in Section 943.0585, F.S. Agencies not specified in the statutes are not provided the expunged notification.

 

7.      If a state and national criminal history record check is conducted, is it necessary to conduct a separate check of the sex offender registry for registered sex offenders?

 

No. If the state and national fingerprint based criminal his story record check is completed, the agency will be notified of all persons designated as sexual predators or offenders in Florida and in the national system.

 

8.      What is the Civil Workflow Control System (CWCS)?

 

Florida Department of Law Enforcement (FDLE) developed the Civil Workflow Control System (CWCS). CWCS, pronounced “QUICKS”, is an automated system used to receive, process and respond to electronic requests for applicant criminal history record checks. Processing that once took several weeks with fingerprint cards now takes 24 to 72 hours with electronic submissions. CWCS allows different types of applicants to be scanned on a single device and allows input from a variety of livescan devices that adhere to FDLE and FBI standards and requirements.

 

9.      How long does it take to complete a state and national criminal history record check when fingerprints are submitted electronically?

 

Typically, state and national criminal history record checks are completed within two to three working days of receiving the electronic submission. When a transaction is complete within the CWCS system, the results are posted to Certified Mail, a secure FDLE web mail application. The results will include both state and national criminal history information, as well as any warrants and other information related to the individual.

 

A result notification email is sent to the email address designated by the customer and will contain a link to this Certified Mail application. This notification will also contain descriptive information specific to the transaction.

 

10.  When can a non-governmental agency receive the results of a state and national background check?

 

Non-governmental entities are not authorized to receive both state and national criminal history information under statutory licensing and employment provisions. The only time non-governmental entities are eligible to obtain national criminal history information is through the VECHS program.

 

11.  What is the Volunteer and Employee Criminal History System (VECHS) program?

 

The VECHS program allows for qualified entities to obtain state and national criminal history record checks on individuals working with children, the elderly or the disabled.

 

12.  What is a “qualified entity”? Who can obtain criminal history background checks under the VECHS and Section 943.0542, Florida Statutes?

 

To qualify for the VECHS Program, an entity must provide some type of “care” or “care placement services” for children, the elderly or the disabled; even if it is only a limited part of the entity’s overall business. Once qualified to participate in the program, an entity may request criminal history information on all current and prospective employees and volunteers, not only those who work with vulnerable persons. A qualified entity may also request criminal history information on employees or volunteers who have or who seek to have unsupervised access to the populations described above.

 

“Qualified entities” are authorized to obtain criminal history record information as described under the NCPA and related federal guidelines. Under the NCPA and Florida statute, a “qualified entity” is a business or organization, whether public, private, for profit, not-for-profit, or voluntary, that provides care or care placement services, including a business or organization that licenses or certifies others to provide care or care placement services. “Care” means the provision of care, treatment, education, training, instruction, supervision, or recreation to children, the elderly, or individuals with disabilities.

 

13.  How does an organization enroll in the VECHS program?

 

If an entity meets the criteria of a “qualified entity”, they may download and complete a copy of the VECHS Qualified Entity Application and the VECHS User Agreement at http://www.fdle.state.fl.us/BackgroundChecks or contact the VECHS Unit at (850) 410-VECHS (850-410-8324), to request a copy of each document.

 

14.  Can qualified entities share criminal history information with other qualified entities?

 

Yes. Criminal history information may be obtained from other VECHS entities, if the employee or volunteer agrees to this on the VECHS Waiver Statement and Agreement form, required to be signed when he/she was fingerprinted, and if the transfer of information is recorded by the other qualified entity on its Dissemination Log. The restrictions on this process are described in the User Agreement. Entities must contact the VECHS Unit at (850) 410-8324 for entity verification before sharing criminal history information.

 

We believe the FAQ was able to expose all key points of FBI Level 2 Background Screening. Here are the solutions your Health Care Network may decide to implement with IDENTICO’s involvement:

 

a)      Community Mental Health & Crisis Stabilization Units- Level 2 is required by AHCA, FS 435.04 & 394.875 (Adults) and DCF FS 394, 435.04 (mental health facilities and programs providing care for children). Owner / Administrator, Financial Officer, Employees and Contractors Providing Personal Care/Services, Employees that have access to client property, funds or living areas, Directors, Professional Clinicians, Staff Members and Volunteers.

 

b)      Hospital, Surgery Centers and Diagnostic-imaging centers – only CEOs and CFOs are required by Florida Law to go through statutory background screening. Fortunately VECHS program makes FBI Level 2 screening available for all Staff Members. This type of organizations have a high chance to fit under the description of “qualified entity” and establishing VECHS number shall not be very challenging. Each entity will have a separate VECHS “E” (Employee) and “V” (Volunteer) number. As a live-scan vendor IDENTICO will keep that information on file ready for every screening.

 

c)      The cost. If your Health Care Network elects to follow with such screening procedures, and IDENTICO is granted with an opportunity to exclusively offer the screening services, we will put all efforts to make the process as convenient and cost effective as possible. Our mobile units have the capacity to travel to all South Florida locations, no stress or hassle for employees. Our technicians are trained and certified. We possess both liability and property insurance, IDENTICO is liable for any damages which may possibly occur to costly live scan equipment, client facilities or employees during the scope of our services. Keeping potential volume and value of having your Health Network as the client in our mind, we are willing to be highly competitive and flexible with payment option and rates, and will be honored with opportunity to discuss it private meeting.

 

We assume there may be several questions you may need to be answered, therefore feel free to contact us anytime.

 

Best regards,

IDENTICO LLC

Office: (954) 239-8590

Fax: (954) 367-2256

www.myidentico.com

Categories
AHCA Background Screening APD Background Screening DCF Background Screening Live Scan Fingerprinting in Florida (General)

Level 2 Background Screening and Entities That Get Sealed And Expunged Records

Numerous individuals who we served had the same set of questions asking whether Level 2 Background Screening will reveal applicants’ sealed or expunged criminal history to regulatory or licensing state agencies. Just to make the subject more detailed we decided to post the basic information about sealed and expunged records in Florida, as well as the list of agencies which will actually receive these historical records.

 

FAQ:

 

Why do I have a criminal history record when the charges against me were dropped/dismissed?

 

The Florida Legislature has determined that Florida criminal history records are public unless the record is sealed or expunged. See Section 943.053(3), Florida Statutes, which provides for public access to criminal history records. The term “criminal history information” is defined, tracking the federal definition, at Section 943.045(4), Florida Statutes. A criminal history record is created when a person is arrested and fingerprinted, and includes the disposition of that arrest, whether it is a conviction, acquittal, dismissal of charges before trial, or other disposition.

 

What is the difference between having a criminal history record sealed vs. expunged?

 

When a criminal history record is sealed, the public will not have access to it.  Certain governmental or related entities, primarily those listed in s. 943.059(4)(a), Florida Statutes, have access to sealed record information in its entirety.

 

When a record has been expunged, those entities which would have access to a sealed record will be informed that the subject of the record has had a record expunged, but would not have access to the record itself without a court order.  Such entities would receive only a caveat statement indicating that “Criminal Information has been Expunged from this Record”.

 

Exclusion for Certain State Agencies to Receive Sealed or Expunged records as part of Level 1 or Level 2 Screening

 

The subject of a criminal history record sealed under this section or under other provisions of law, including former s.893.14, former s.901.33, and former s.943.058, may lawfully deny or fail to acknowledge the arrests covered by the sealed record, except when the subject of the record:

 

  1. Is a candidate for employment with a criminal justice agency;
  2. Is a defendant in a criminal prosecution;
  3. Concurrently or subsequently petitions for relief under s.943.0585 or s.943.059;
  4. Is a candidate for admission to The Florida Bar;
  5. Is seeking to be employed or licensed by or to contract with the Department of Children and Family Services (DCF), the Agency for Health Care Administration (AHCA), the Agency for Persons with Disabilities (APD), or the Department of Juvenile Justice (DJJ) or to be employed or used by such contractor or licensee in a sensitive position having direct contact with children, the developmentally disabled, the aged, or the elderly as provided in s.110.1127(3), s.393.063, s.394.4572(1), s.397.451, s.402.302(3), s.402.313(3), s.409.175(2)(i), s.415.102(4), chapter 916, s. 985.644, chapter 400, or chapter 429;
  6. Is seeking to be employed or licensed by the Department of Education, any district school board, any university laboratory school, any charter school, any private or parochial school, or any local governmental entity that licenses child care facilities; or
  7. Is seeking authorization from a Florida seaport identified in s.311.09 F.S. for employment within or access to one or more of such seaports pursuant to s.311.12 F.S. or s.311.125 F.S.
  8. Is attempting to purchase a firearm from a licensed importer, licensed manufacturer, or licensed dealer and is the subject to a criminal history background check under state or federal law.

 

IDENTICO LLC is FDLE authorized Live Scan vendor serving South Florida.  With any question related to Level 2 background screening please call us at (954) 239-8590 or visit us online at www.myidentico.com for more information. Visit our office located at 3948 Pembroke Road, Suite E, Pembroke Park, FL, 33021 for all fingerprinting, background screening or drug testing needs.

 

Sincerely,

IDENTICO LLC.

Categories
AHCA Background Screening APD Background Screening DCF Background Screening Department of Health Background Screening Live Scan Fingerprinting in Florida (General) VECHS Program

Federal Statutes Authorizing Criminal Background Checks for Nursing Facility Job Applicants and Employees

There are approximately 15 federal laws that permit criminal background checks for civil (i.e., employment and licensing) purposes. Fingerprinting, either through electronic “live scans” or paper and ink “hard cards,” is required for all federal criminal background checks conducted for employment and licensing purposes.

 

Three of these laws permit nursing facilities to seek criminal background checks on employees and job applicants. Two of the three laws, as amended, authorize nursing facilities to seek FBI criminal background information regardless of whether the state where the facility is located has enacted its own law to permit access to state criminal background records. The third law authorizes nursing facilities to seek federal criminal background checks if the state where the facility is located has enacted a law to authorize access to state criminal background information.

 

Current procedures under all three federal laws require nursing facilities to channel requests for FBI criminal background information through a designated state agency.

 

Summaries of each law’s major provisions, advantages and limitations follow.

 

I. Public Law 105-277
Section 124 of Pub. L. 105-277, enacted in 1998, enables nursing facilities (“NFs”) and home health care agencies (“HHAs”) to request fingerprint-based national criminal history checks by the FBI for employees or job applicants for positions involving direct patient care. The NF or HHA seeking the background check must contact the designated state agency to obtain fingerprint cards and then must send the completed cards along with additional information from the applicant back to the state agency for processing. The state agency then will check its own criminal history record information (CHRI) and will forward the fingerprint cards to the FBI for a check of the FBI records. If any CHRI is found by the state, FBI, or both, the designated state agency will forward it to the NF or HHA for its use in making an employment determination for the applicant.

 

Pub. L. 105-277 does not require states to enact implementing legislation before NFs and HHAs can request federal criminal background checks of employees or job applicants. This is intended to give all NFs and HHAs nationwide the ability to seek access to the CHRI retained by the FBI. The statute does not specify that a law enforcement agency must take the individual’s fingerprints, therefore it may be permissible for a private company to perform the actual fingerprinting.

 

II. National Child Protection Act of 1993
The National Child Protection Act of 1993, 42 U.S.C. § 5119a, was amended by the Violent Crime Control and Law Enforcement Act of 1994, Pub. L. 103-322 § 320928, to allow for federal criminal background checks of individuals who work for, own, or operate a business that provides care to the elderly or individuals with disabilities, as well as those who are responsible for the safety and well-being of children. This statute was amended again in 1998 by the Volunteers for Children Act, Pub. L. 105-251 § 222, to allow for federal criminal background checks even when the state does not have an authorizing statute or regulations.

 

Under this law, “qualified entities” (as designated by the state) may request federal criminal background checks of a “provider” pursuant to specified guidelines. If a state has a statute or regulations that require qualified entities to request such federal background checks, the state procedures must be followed in addition to the federal guidelines. A “qualified entity” is defined as a business or organization, whether public, private, for-profit, not-for-profit, or voluntary that provides (or licenses or certifies others to provide) care or care placement services to children, the elderly, or individuals with disabilities. A “provider” is defined as any person who: is an employee, an applicant for employment, or a volunteer for a qualified entity; is an owner or operator of a qualified entity; or has or may have unsupervised access to a child to whom the qualified entity provides child care. Thus, under this statute, federal criminal background checks may be obtained for owners, operators, employees, volunteers, and job applicants of entities that provide health care services to children, the elderly or disabled. It should be noted that as long as the entity is “qualified,” all of its employees and volunteers are amenable to backgrounding.

Therefore, the scope of employees and/or job applicants for whom criminal background checks can be sought is broader than under Pub. L. 105-277. Under both statutes, the health care employer submits the applicant’s fingerprints and identification information to the designated state agency for processing. However, the NCPA, as amended, requires that the state agency make the determination of the applicant’s fitness for the job, not the employer. Both statutes allow for federal criminal background checks in the absence of state implementing legislation.

 

III. Public Law 92-544
Passed by Congress in 1972, Pub. L. 92-544 is an appropriations statute that provides funding to the FBI for acquiring, collecting, classifying, preserving, and exchanging identification records with duly authorized officials of the federal government, the states,cities, and other institutions. Under this federal law, health care employers have the ability to obtain federal criminal background checks of employees and job applicants, under certain conditions. First, there must be a state law authorizing health care employers to request such background checks from state and local government officials. Second, the authorizing state statute must be approved by the Attorney General of the United States.

 

Regulations implementing this law give the Director of the FBI the power and authority of the Attorney General to approve and conduct exchanges of identification records with officials of state and local governments for employment and licensing purposes if authorized by a state statute that has met the approval of the Attorney General. See 28 C.F.R. § 0.85(j). Pub. L. 92-544 and its implementing regulation do not provide guidelines for obtaining federal criminal background checks. Presumably, such guidelines or procedures would be established under the enabling (or other) state statute.

 

The FBI, consistent with several legal opinions from the U.S. Department of Justice, has established the mandatory elements of a state statute enacted under the auspices of Pub. L. 92-544. The state statute must:

 

(1) Exist as a result of a legislative enactment;
(2) Require that the criminal background check be fingerprint-based;
(3) Authorize the submission of fingerprints to the State Identification Bureau for forwarding to the FBI for a national criminal history check;
(4) Identify the categories of licensees amenable to backgrounding; and
(5) Provide that an authorized government agency be the recipient of the results of the record check.

 

Pub. L. 92-544 does not allow federal criminal records to be shared directly with health care employers. Like the NCPA, as amended, Pub. L. 92-544 requires that the state agency make the determination of the applicant’s fitness for the job, not the employer.

 

Public Law 105-277

 

The steps for conducting a background check include:
(1) The NF or HHA contacts the state Control Terminal Officer (“CTO”) and/or State Identification Bureau (“SIB”) to request fingerprint cards (which bear a state-of-origin number for tracking purposes);
(2) The NF or HHA gives the fingerprint cards to the applicant;
(3) The applicant goes to the local police department or sheriff’s office to get fingerprinted, which involves:
(a) Providing his/her name, address, and date of birth as they appear on a government document (e.g., a driver’s license);
(b) Certifying that he/she has not been convicted of a crime and is not under indictment for a crime, or describing the crime and facts involved; and
(c) Having his/her fingerprints “rolled” onto the fingerprint cards;
(4) The applicant returns the fingerprint cards and supporting information to the NF or HHA;
(5) The NF or HHA sends the fingerprint cards, supporting information, and FBI fee (currently $24) to the state agency (e.g., CFO, SIB) or other agency designated by the Attorney General no more than 7 business days after the fingerprints were taken;
(6) The FBI conducts a check of its criminal history records (which include records of serious state offenses) and provides the results of the search to the submitting state agency;
(7) The state agency receives the federal results from the FBI and forwards them with the state results to the NF or HHA; and
(8) The NF or HHA makes the determination whether the applicant has a criminal record which would adversely affect the employment decision. In other words, the facility does not get a yes/no answer on whether to hire the individual. The statute provides immunity to the NF or HHA for making this determination based on incomplete or inaccurate information.
*Note: the local law enforcement agency and state agency may charge separate fees. Although the statute is silent as to additional fees, the FBI has concluded that such fingerprinting and processing fees are not limited by federal law.

 

National Child Protection Act of 1993

 

The steps for conducting a background check include:
(1) The NF or HHA must seek and obtain from the appropriate state agency “qualified entity” status under 42 U.S.C. § 5119(a)(1).
(2) The qualified entity obtains from the provider (i.e., employee or applicant):
(1) Fingerprints (presumably taken at a local law enforcement agency or by a private company);
(a) A signed statement to the qualified entity that:
(1) Contains the name, address, and date of birth of the provider as it appears on a valid I.D.;
(i) The provider has not been convicted and is not under pending indictment for a crime, or a description of the crime and conviction must be given;
(ii) Notifies the provider that the qualified entity may request a background check;
(iii) Notifies the provider of the provider’s rights to: obtain a copy of any background check report, challenge the accuracy and completeness of any information contained in any report, and obtain a prompt decision on that challenge before a final determination is made by the state agency; and
(iv) Notifies the provider that before the background check is complete, the qualified entity may restrict the provider’s access to a person to whom the qualified entity provides care;
(3) The qualified entity submits the background check request, provider’s finger-prints and supporting documentation to the state agency designated to report, receive, or disseminate background check information (an “authorized agency”);
(4) The authorized agency will review state records and also transmit the fingerprints to the FBI for a national check (which will be returned to the state). The state will make a reasonable effort to provide a consolidated response to the request within 15 days;
(5) The authorized agency makes a determination whether the provider has been convicted of, or is under indictment for, a crime that bears upon the provider’s fitness to be responsible for the safety and well-being of children, the elderly, or individuals with disabilities, and conveys that determination to the qualified entity. The qualified entity then notifies the provider of the determination.

 

 

We have elected to post this information for your consideration, just to outline that Florida House Bill 7069 effective August 1,2010 regarding Level 2 background screening standards for AHCA, DCF, APD, DOH and DOEA was just a one step above made by Florida legislators to match Public Law 92-544. The primary reason is to increase the quality and security level of services provided to our elderly, minor, disabled and vulnerable population.

 

If the Nursing or Health Care facility where you work or manage is located in Miami, Broward, Palm Beach or Martin counties, please call IDENTICO LLC today, for in office or mobile live scan fingerprinting appointment. IDENTICO is FDLE approved Live Scan vendor, and we use electronic fingerprinting solutions in transmitting your fingerprints for FBI Level 2 Background Check and regulatory state agency will get the results of screening in as less as 72 hours.

 

Visit our official website www.myidentico.com or call us today (954) 239-8590. We have an open door policy at our office located at 3948 Pembroke Road, Suite E, Pembroke Park, FL, 33021, however if you would like to schedule an appointment at certain time, please visit http://www.myidentico.com/hitappoint/ and we’ll serve you first regardless of any wait line.

 

Sincerely,

IDENTICO LLC.

Categories
APD Background Screening DCF Background Screening VECHS Program

DCF Level 2 Background Screening and Fingerprinting for Summer Camps in Florida

Here are some important facts on background screening for Summer Camps in FAQ format:

 

What constitutes a summer camp?

 

Summer day camps” and “Summer 24-hour camps” are defined in Section 409.175 F.S. “Summer day camps” are recreational, educational, and other enrichment programs operated during summer vacations for children who are 5 years of age on or before September 1 and older. “Summer 24-hour camps” are recreational, educational, and other enrichment programs operated on a 24-hour basis during summer vacations for children who are 5 years of age on or before September 1 and older, that are not exclusively educational.

 

Requirements for athletic coaches are found in Section 943.0438 F.S. Background screening for paid or volunteer athletic coaches are not screened through the Department of Children and Families, they are screened using the Volunteer and Employee Criminal History System (VECHS) through the Florida Department of Law Enforcement (FDLE). Enforcement of requirements for athletic coaches would be the independent sanctioning authority.

 

Who has to be screened?

Personnel for the purposes of screening for summer day camps and summer 24-hour camps includes owners, operators, employees, and volunteers working in summer day camps and summer 24-hour camps providing care for children. Volunteers who assist on an intermittent basis for less than 10 hours per month do not need to be screened if a person who meets the screening requirement is always present and has the volunteer in his or her line of sight.

 

When do employees or volunteers have to be screened?

An employer may not hire, select, or otherwise allow an employee to have contact with any vulnerable person that would place the employee in a role that requires the background screening.

 

How are international counselors background screened?

They must complete a Level 2 Background Screening upon arriving in Florida. Although not required by law, a background check from their home country should be requested. Most organizations that assist with identifying international counselors do provide a background check.

 

Are employees or volunteers under the age of 18 required to be fingerprinted?

Yes. There are no exclusions under the statute for those under age 18 from being fingerprinted. However, if the employee or volunteer under 18 is not providing direct care for children, they would not have to be fingerprinted.

 

What are the differences between Level 1 and Level 2 Background Screening for employment and where are the lists of offenses that will preclude potential employees from working? What are local law enforcement checks? What are the cost differences? Do we need to do a local sheriff’s check?

The requirements for Level 1 and Level 2 Employment Background Screening are found in Chapter 435 Florida Statutes. Level 1 Background Screening requires an employment history check, statewide criminal correspondence checks through FDLE (name-based check), and a check of the Dru Sjodin National Sex Offender Public Website and may include local law enforcement checks.

 

Level 2 Background Screening requires fingerprinting for statewide criminal history checks through FDLE and national criminal history checks through the Federal Bureau of Investigation (FBI), and may include local law enforcement checks.

The list of disqualifications from employment is found in Section 435.04 F.S.

 

They include:

 

  • Anyone arrested for and awaiting final disposition of prohibited offense, regardless of adjudication
  • Anyone who has entered a plea of nolo contendere or guilty to a prohibited offense
  • Any case where the applicant was adjudicated delinquent and the record of committing a prohibited offense has not been sealed or expunged

 

Local law enforcement checks are completed by local sheriff and police departments. They are recommended because occasionally there may be information related to arrests or calls to the applicant’s address that are not included in the FDLE record.

 

The costs can vary and depend upon the Live Scan vendor selected. Most costs are listed on our website under the section Live Scan Location and Interactive Map.

 

Are volunteer athletic coach screened under this law?

No. Background screening for volunteer athletic coaches is authorized under s. 943.0438 F.S. through the Volunteer and Employee Criminal History System.

 

What are the differences between this law and the Jessica Lunsford Act?

The Jessica Lunsford Act found in Section 1012.465 F.S. requires non-instructional school district employees or contract personnel who are permitted access on school grounds when students are presents meet Level 2 Background Screening requirements as described in s. 1012.32 F.S.

 

Is there any limit on how far in advance you can screen?

No earlier than 60 days before beginning employment.

 

How often do they have to be screened?

Section 409.1757 F.S. outlines when persons are not required to be refingerprinted or rescreened. If an employee or applicant has been fingerprinted or screened as required in chapter 393, 394, 397, 402, and 409, or teachers pursuant to chapter 1012, who have not been unemployed for more than 90 days and attest to the completion of the fingerprinting and compliance with the standards related to good moral character.

 

What are ORI and OCA numbers? What is the process to get an agency ORI Code and OCA Code and how long does that take?

The ORI number (Originating Agency Identifier). This number is provided by FDLE and identifies the agency requesting the criminal history check and for what purpose.

The OCA (Controlling Agency Identifier). This number is provided by DCF and identifies the provider requesting the background check.

Without the ORI number and the OCA number, FDLE cannot process the request and the DCF will not know where the screening results are to be sent.

The DCF will need the following:

 

Facility/Camp:

Name
Physical Address
Mailing Address
Valid E-mail
Contact Person (Owner/Operator)
Contact Person Phone Number

 

This information can be sent to the following email address: bgs1116@dcf.state.fl.us

Upon registration, you will be provided a DCF Agency Identifier (ORI) and a DCF Live Scan OCA through email.

 

What if we have already done the VECHS check – is this sufficient?

No. DCF is responsible for ensuring persons working in summer camps meet the requirements for background screening. VECHS checks are not allowed to be shared with the Department.

 

What if we have already done fingerprint checks, but not through the Live Scan process – do those have to be redone? Can fingerprints be done using hard cards?

 

If they meet the Level 2 requirements, were completed within the last 5 years, and there has not been a 90 day break in service, they would not need to be redone.

Fingerprints submitted using hard cards are permissible until 2012. However, it will delay receiving the results for 4-6 weeks or longer.

 

Where do the records need to be kept? Is it the same for the Affidavit of Good Moral Character?

The results from the background screening and the Affidavit of Good Moral Conduct should be maintained in your personnel files.

 

Who will be enforcing this? Can we expect to be monitored or inspected, or will this happen when a complaint is lodged against a program?

 

DCF has the authority to ensure compliance. Currently, summer camps are only monitored when a complaint has been made related to noncompliance with background screening. However, we are reviewing the requirements and more information related to enforcement will be released in the near future.

 

Why isn’t there a state database where I can verify if someone has already been checked?

Currently, there are limitations on sharing information between agencies. Agencies work together and when possible, the DCF will accept Level 2 Letters of Clearance completed by other entities such as school boards, or the Agency for Health Care Administration.

 

Is all necessary information collected with the fingerprint, or are there other forms that have to be completed and retained by us, or returned to DCF?

For completion of the Level 2 Background Screening, the information provided to the Live Scan Vendor is sufficient. Additional information from the applicant may be required if a criminal history is noted.

 

When does a summer camp have to be licensed by DCF?

Summer camps are not licensed by DCF.

 

Does the State require any additional training of employees hired by local agencies for summer programs?

No.

What are the counties that are doing their own licensing, when are they allowed to do their own licensing, and can they require a program that is exempt in State statute to be licensed under their county authority? Where can we find contact information on those county licensing boards/units?

 

The State does not require licensure of summer camps. There may be local ordinances that do require licensure. This information would be found locally.

Is there a website for more answers on DCF background screening requirements?

 

Yes. The Department website for background screening is: http://www.dcfbackgroundscreening.com. As information or updates are available, they will be added to our website.

 

Categories
AHCA Background Screening DCF Background Screening

Florida Level 2 Background Check Changes for 2012

Mental Health Personnel

“Mental health personnel” are required to be Level 2 screened. “Mental health personnel” includes program directors, clinicians, staff, and volunteers working in public or private mental health programs and facilities who have direct contact with individuals. Volunteers that have less than ten hours per month of contact with patients are not required to be screened so long as they remain in the line of sight of someone who has been Level 2 screened while having direct contact with patients.

 

Effect of Proposed Changes
The bill amends s. 394.4572(1), F.S., to restore an exemption from screening removed in 2010 for mental health personnel with 15 hours or less direct contact with patients per week in a hospital licensed pursuant to ch. 395, F.S., provided that the person in not listed on the FDLE Career Offender database or the Dru Sjodin National Sex Offender Public Website. The exemption is not available to persons working in a mental health facility where the primary purpose of the facility is the treatment of minors.

 

Agency for Health Care Administration Rescreening Schedule

Persons screened under the Agency for Health Care Administration (AHCA) must be rescreened every five years. In 2010, authority was given to AHCA to establish by rule a staggered schedule for the rescreening of all persons who have a controlling interest in, are employed by, or contract with a licensee on July 31, 2010. All such persons must be rescreened by July 31, 2015.

 

Effect of Proposed Changes

The bill amends s. 408.809, F.S., to add the rescreening staggered schedule to statute, thereby eliminating the need for a rule. The bill also amends this statute to limit an exemption from the screening process to persons whose background screening results have not been retained in the Care provider Background Screening Clearinghouse created by this bill.

 

Summer Camps

Summer camps are not licensed by the state but summer camp owners, operators, employees, and volunteers are required to be Level 2 screened. Volunteers that have less than ten hours per month of contact with children are not required to be screened provided while having direct contact with children they remain in the line of sight of someone who has been Level 2 screened.

 

Effect of Proposed Changes

The bill amends s. 409.1757, F.S., to add law enforcement officers with active certification to those licensed persons who do not have to be screened for purposes of ch. 409, F.S. The exemption applies to active sworn law enforcement officers who work or volunteer in summer camps and other facilities regulated under ch. 409, F.S., such as foster group homes and residential child-caring agencies.

 

Consumer-Directed Care

The Consumer-Directed Care (CDC) Program established under AHCA provides an alternative to institutional care. These alternatives include in-home and community-based care. The program allows recipients of in-home and community-based services the opportunity to select the services they need and the providers they want, including family and friends. The stated intent of the CDC Program is “to give such individuals more choices in and greater control over the purchased long-term care services they receive.”
Persons who provide care under the CDC Program must undergo level 2 background screening pursuant to ch. 435, F.S.13 Other regulatory and care programs under AHCA screen individuals pursuant to ch. 435, F.S., but also s. 408.809, F.S.14 It is believed to be an oversight that the provisions of s. 408.809, F.S., are not applicable for those providing services under the CDC Program.

 

Effect of Proposed Changes

The bill amends s. 409.221(4)(i), F.S., to provides that persons providing services under the CDC Program will be background screened pursuant to ch. 435, F.S., and s. 408.809, F.S.

The Department of Elderly Affairs

The Department of Elderly Affairs (DOEA) is the designated state unit on aging as defined in the Older Americans Act (OAA) of 1965.15 As such, DOEA’s role is to administer the state’s OAA allotment and grants, and to advocate, coordinate, and plan all elder services. The OAA requires states to provide elder services through a coordinated service delivery system through designated Area Agencies on Aging . Chapter 430, F.S., requires DOEA to fund service delivery “lead agencies” that coordinate and provide a variety of oversight and elder support services at the consumer level in the counties within each planning and service area. DOEA is 94 percent privatized through contracts with local entities and utilizes over 45,000 volunteers to deliver information and services to elders.17 Many of the volunteers are elders themselves.


The 2010 revision of the background screening laws created s. 430.0402, F.S., requiring Level 2 background screenings for “direct services providers” who provide services through a contractual relationship with DOEA.19 A “direct service provider” is defined as a person who pursuant to a program to provide services to the elderly, has direct, face-to-face contact with a client while providing services to the client or has access to the client’s living areas or to the client’s funds or personal property.20 Volunteers are specifically included as “direct service providers.”21
The statute contains no exception from background screening for a volunteer who has occasional or limited contact with elders. In other statutes, there are exceptions for volunteers who are in brief or occasional contact with vulnerable populations. For example, s. 393.0655(1), F.S., exempts from screening a volunteer who assists with persons with developmental disabilities if the volunteer assists less than 10 hours per month and a person who has been screened is always present and has the volunteer within his or her line of sight.22


Area Agencies on Aging and Elder Care Services are entities who contract with DOEA to provide services to elders. Representatives of several of these entities report that the requirement of Level 2 background screening of volunteers has dramatically reduced the number of volunteers, potentially impacting the availability of services to elders. The Meals on Wheels program is dependent on volunteers, and the program is currently losing volunteers who cannot afford to pay for the cost of a Level 2 background screening. Senior centers, congregate meal sites, and health and wellness programs are also dependent on volunteers.
The provisions of the 2010 legislation also impacts Home Care for the Elderly (HCE)24 caregivers. Many HCE caregivers are family members. These family members receive a monthly stipend of $106 to help care for a family member at home. The stipend is used to pay for incontinence products, nutritional supplements, respite care, and other needed products and services. The new Level 2 background screening requirement is applicable to these family members who act as caregivers.

 

Effect of Proposed Changes
The bill amends s. 430.0402, F.S., to revise the definition of direct service provider to include only individuals who have direct, face-to-face contact with a client and have access to the client’s living areas, funds, personal property, or personal identification information as defined in s. 817.568, F.S. Current law defines a direct service provider as having client contact or living area/property access.

The bill creates an exemption from background screening for the following:

Volunteers who assist on an intermittent basis for less than 20 hours per month and who are not listed on the FDLE Career Offender database25 or the Dru Sjodin National Sex Offender Public Website/ Relatives/ Attorneys in good standing with the Florida Bar.
The bill provides an exemption from additional background screening for an individual who becomes a direct care provider and provides services within the scope of his or her license. The exemption applies to a person who was previously screened by the Agency for Health Care Administration as a condition of licensure or employment. Such individuals would include owners, administrators, and employees of such entities as nursing homes, assisted living facilities, home health agencies, and adult day care establishments.

 

The bill provides time frames for screenings by DOEA:

Individuals serving as direct service providers on July 31, 2011, must be screened by July 1, 2013. DOEA may adopt rules to establish a schedule to stagger the implementation of the required screenings over a 1-year period, beginning July 1, 2012, through July 1, 2013. Individuals shall be rescreened every 5 years following the date of his or her last background screening unless the individual’s fingerprints are continuously retained and monitored by FDLE in the federal fingerprint retention program.
The bill removes “any authorizing statutes, if the offense was a felony” from the list of disqualifying offenses for direct services providers. The term “authorizing statute” is not defined by ch. 430, F.S. The term is defined in s. 408.803, F.S., and relates to entities regulated by the Agency for Health Care Administration.

 

Care Provider Background Screening Clearinghouse

Many different agencies, programs, employers, and professionals serve vulnerable populations in Florida. Personnel working with those entities and serving vulnerable persons are subject to background screening. However, due to restrictions placed on the sharing of criminal history information, persons who work for more than one agency or employer or change jobs, or wish to volunteer for such an entity, often must undergo a new and duplicative background screening and fingerprinting. This proves frustrating to those involved and leads to the payment of additional fees.

 

Policies imposed by the Federal Bureau of Investigation (FBI) prevent the sharing of criminal history information except within a given “program.” Since each regulatory area is covered by a different controlling statute and screenings are done for separate purposes, the screenings have been viewed as separate “program” areas and sharing of results has not been allowed. In addition, screenings are only as good as the date they are run. Arrests or convictions occurring after the screening are not known until the person is rescreened or self-reports.

 

Effect of Proposed Changes
The bill creates the Care Provider Background Screening Clearinghouse (Clearinghouse) in s. 435.12, F.S. The purpose of the Clearinghouse is to create a single “program” of screening individuals who have direct contact with vulnerable persons. The Clearinghouse is created under AHCA and is to be implemented in consultation with FDLE. The Clearinghouse is a secure internet web-based system and is to be implemented by September 30, 2013, and allows for the results of criminal history checks of persons acting as covered care providers to be shared among the specified agencies.
Fingerprints of the care providers will be retained by FDLE, meaning the electronically scanned image of the print will be stored digitally. FDLE will search the retained prints against incoming Florida arrests and must report the results to AHCA for inclusion in the Clearinghouse, thus avoiding the need for future state screens and related fees. A digital photograph of the person screened will be taken at the time the fingerprints are taken and retained by FDLE in electronic format, as well. This enables accurate identification of the person when they change jobs or are otherwise presented with a situation requiring screening and enables the new employer to access the Clearinghouse to verify that the person has been screened, is in the Clearinghouse, and is who they say they are. Retained fingerprints must be resubmitted for a FBI national criminal history check every five years until such time as the FBI implements its own retention program. Once the FBI implements its retention program, the need for any future screening by the specified agencies of persons in the Clearinghouse will be eliminated.


The bill does not require the rescreening of persons just to be entered into the Clearinghouse, but their fingerprints will be placed into the Clearinghouse once they are required to be rescreened by the operation of other screening laws. Once a person’s fingerprints are in the Clearinghouse, they will not have to be reprinted in order to send their fingerprints to the FBI (avoiding further fees).
Electronic Screening Vendors


By July 1, 2012, all fingerprints submitted to FDLE must be submitted electronically.30 An agency may by rule require fingerprints to be submitted electronically prior to that date.31 An agency may contract with one or more vendors to perform all or part of the electronic fingerprinting and must ensure that each vendor is qualified and will ensure the integrity and security of all personal information.
Effect of Proposed Changes


The bill amends s. 435.04, F.S., to require vendors that do electronic fingerprinting to:
Meet certain technical standards that are compatible with technology used by FDLE; and Have the ability to communicate electronically with the relevant state agency and to provide a photograph of the applicant taken at the time the fingerprints are submitted.