DEPARTMENT OF ELDER AFFAIRS
Emergency Rule No.: RULE TITLE 58ER10-2: Background Screening Requirements.
SPECIFIC REASONS FOR FINDING AN IMMEDIATE DANGER TO THE PUBLIC HEALTH, SAFETY OR WELFARE:
The Florida Legislature passed Chapter 2010-114, Laws of Florida (L.O.F.), during the 2010 legislative session. This new law requires that effective August 1, 2010, all individuals seeking employment or volunteerism, which will require direct contact with individuals receiving services under the jurisdiction of the DOEA, must undergo a Level 2 background screening prior to employment or volunteerism. The Department is publishing this emergency rule to protect the health, safety and welfare of its recipients, thus eliminating the threat of immediate danger by reducing the potential for physical, mental or sexual abuse, or financial exploitation.
REASON FOR CONCLUDING THAT THE PROCEDURE IS FAIR UNDER THE CIRCUMSTANCES: This emergency rule establishes criteria for complying with Level 2 background screening requirements pursuant to Chapter 2010-114, L.O.F., and more specifically, pursuant to Sections 430.0402 and 435.01(2), F.S., the later section which provides rulemaking authority to individual agencies affected by the new background screening requirements. In addition, Section 430.08, F.S., provides the DOEA with rulemaking authority to establish rules to implement the provisions of Chapter 430, F.S. The DOEA has been unable to complete the rulemaking process. Consequently, the DOEA finds it necessary to publish this emergency rule to continue to protect the health, safety and welfare of recipients while continuing with the rulemaking process.
SUMMARY: This emergency rule establishes criteria and procedures for complying with the new requirement of a Level 2 background screening for all potential employees, who will have direct contact with Department recipients, prior to employment or volunteerism.
THE PERSON TO BE CONTACTED REGARDING THE EMERGENCY RULE IS: Jim Crochet, Department of Elder Affairs, Office of the General Counsel, 4040 Esplanade Way, Suite 315, Tallahassee, FL 32399-7000; telephone (850) 414-2113; Email address: firstname.lastname@example.org.
THE FULL TEXT OF THE EMERGENCY RULE IS:
58ER10-2 Background Screening Requirements.
In addition to the term “direct service provider,” as defined in Section 430.0402(1)(b), F.S., the following definitions are included in this rule:
(a) “AHCA” means the Florida Agency for Health Care Administration.
(b) “APD” means the Florida Agency for Persons with Disabilities.
(c) “CDC+” means the Consumer Directed Care Plus Program as described in Section 409.221, F.S.
(d) “Disqualifying Offense” means any criminal offense prohibited in Section 430.0402 or 435.04, F.S.
(e) “DOEA” or “Department” means the Florida Department of Elder Affairs.
(f) “DOH” means the Florida Department of Health.
(g) “FBI” means the Federal Bureau of Investigation.
(h) “FDLE” means the Florida Department of Law Enforcement.
(i) “Level 1 Screening” means an assessment of employment history checks, statewide criminal correspondence checks, local criminal history checks and a check of the Dru Sjodin National Sex Offender Public Website coordinated through FDLE to determine whether screened individuals have any disqualifying offenses pursuant to Section 430.0402 or 435.04, F.S.
(j) “Level 2 Screening” means an assessment of the criminal history record obtained through a fingerprint search coordinated through FDLE and the FBI to determine whether screened individuals have any disqualifying offenses pursuant to Section 430.0402 or 435.04, F.S.
(k) “Livescan” means both the technique and the technology used by law enforcement agencies and private facilities to capture fingerprints and palm prints electronically, without the need for the more traditional method of ink and paper.
(2) BACKGROUND SCREENING REQUIREMENTS.
Pursuant to Section 430.0402(1)(a), F.S., Level 2 background screening consistent with the requirements of Chapter 435, F.S., is required for all direct service providers as defined in Section 430.0402(1)(b), F.S.
(3) IMPLEMENTATION AND RETENTION.
Pursuant to Section 430.0402, F.S., beginning August 1, 2010, the following is required:
(a) All newly-hired direct service providers shall be required to undergo a Level 2 background screening pursuant to Chapter 435 as a condition of employment or volunteerism and continued employment or volunteerism. Such screening shall ensure that a direct service provider has not been arrested awaiting final disposition of, has been found guilty of, regardless of adjudication, or entered a plea of nolo contendere or guilty to, or has been adjudicated delinquent and the record has not been sealed or expunged for, any offense prohibited under Sections 430.0402, 435.03 or 435.04, F.S., or a similar law of another jurisdiction.
(b) Employers of direct service providers, who have not been previously screened according to the screening standards of Chapter 435, F.S., must ensure that at least twenty percent (20%) of the available population of such individuals are screened pursuant to the Level 2 screening standards of Chapter 435, F.S., within 120 calendar days of August 1, 2010, and an additional twenty percent (20%) every 90 calendar days thereafter, until all direct service providers have successfully satisfied the screening standards of Section 430.0402, F.S., and Chapter 435, F.S., or have applied for and received an exemption pursuant to Section 435.07, F.S. Employers with fewer than 5 direct service providers must ensure that all such direct service providers are screened within the initial 120 calendar day window after August 1, 2010.
(c) Employers of direct service providers are responsible for ensuring applicant fingerprints are retained by FDLE in the Applicant Fingerprint Retention and Notification Program, whereby notification is automatically sent to the Department’s Background Screening Coordinator, according to the procedures specified in Section 943.05, F.S., in the event of a direct service provider’s subsequent arrest.
(d) Employers of direct service providers, who previously qualified for employment or volunteer work under Level 1 screening standards, and individuals required to be screened according to the Level 2 screening standards contained in Chapter 435, F.S., and Section 430.0402, F.S., shall be required to be rescreened every 5 years from the date of their last background screening or exemption, unless such individual’s fingerprints are continuously retained and monitored by FDLE in the Applicant Fingerprint Retention and Notification Program, according to the procedures specified in Section 943.05, F.S.
The following are exceptions to the background screening requirements specified in this rule:
(a) Physicians, nurses, or other professionals licensed by DOH are not subject to the background screening requirements of Chapter 435, F.S, if they are providing a service that is within the scope of their licensed practice.
(b) Individuals qualified for employment by AHCA pursuant to that Agency’s background screening standards for licensure or employment contained in Section 408.809, F.S., are not subject to subsequent or additional Level 2 background screening pursuant to Chapter 435, F.S., or the unique screening requirements of Section 430.0402, F.S., by virtue of their employment as a direct service provider, if they are providing a service that is within the scope of their licensed practice.
(c) Individuals qualified for employment by APD pursuant to that Agency’s background screening standards contained in Section 393.0655, F.S., are not subject to subsequent or additional Level 2 background screening pursuant to Chapter 435, F.S., or the unique screening requirements of Section 430.0402, F.S., by virtue of their employment as a direct service provider as defined in Section 393.063(11), F.S.
(d) Back-up providers, who render services to consumers enrolled in the CDC+ program, are considered to be the same as full-time providers, as defined in Section 409.221(c)5., F.S. Consequently, they are not considered to be unemployed for more than 90 days pursuant to Section 409.221(4)(h)2.(i), F.S., if they have not been called to render back-up services for a period exceeding 90 days.
(5) ELECTRONIC SUBMISSION OF FINGERPRINTS.
Beginning August 1, 2010, fingerprints submitted pursuant to Chapter 435, F.S., must be submitted electronically to FDLE, pursuant to paragraph (3)(c) of this rule.
(6) BACKGROUND SCREENERS.
One of the entities listed in the subsections below may be utilized for Level 2 background screening as long as the entity verifies in writing to the employer that all background screeners performing electronic fingerprinting meet the requirements of Section 435.04(1)(c), F.S., and have been subject to, and passed, a Level 1 background screening under the standards set forth in Chapter 435, F.S.
(a) Any screening company listed on the FDLE website as authorized to perform Level 2 LiveScan background screenings. The website address is: http://www.fdle.state.fl.us/Content/getdoc/04833e12-3fc6-4c03-9993-379244e0da50/livescan.aspx.
(b) Any local law enforcement capable of performing Level 2 Livescan background screenings, provided the equipment and electronic fingerprint data submission have been evaluated by FDLE to verify compliance with both FDLE and FBI regulations and standards.
(7) SHARING OF SCREENING RESULTS.
The information that a particular direct service provider has successfully passed a Level 2 background screening may be shared among DOEA programs and providers. In addition, passage of a Level 2 background screening for one program or provider shall constitute passage for all programs and providers. However, the use of a Level 2 background screening by a subsequent program or provider shall not affect the applicable date for rescreening pursuant to paragraph (3)(d) of this rule, if any. No information other than the fact that the applicant passed Level 2 screening may be shared.
Rulemaking Authority 430.08, 435.01(2) FS. Law Implemented 430.0402, 435.01, 435.02, 435.03, 435.04, 435.06, 435.07 FS. History–New_11-1-10, Supersedes 58ER10-1.
THIS RULE TAKES EFFECT UPON BEING FILED WITH THE DEPARTMENT OF STATE UNLESS A LATER TIME AND DATE IS SPECIFIED IN THE RULE. EFFECTIVE DATE: November 1, 2010
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