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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.

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