Attention: The changes on Senate Bill CS/SB 1992 submitted by Children, Families, and Elder Affairs on 03/10/11 were vetoed by Governor on 06/23/2011. This law is not effective, and the summary of proposed but failed to be accepted changes are posted for your personal consideration.
THE FLORIDA SENATE Committee on Children, Families, and Elder Affairs
The bill makes a number of changes to background screening requirements, primarily pertaining to individuals who work with Florida’s vulnerable populations. Those changes include:
Exempting from fingerprinting and screening requirements, mental health personnel working in a facility licensed under ch. 395, F.S., who work on an intermittent basis for less than 15 hours a week of direct, face-to-face contact with patients, except that individuals working in a mental health facility where the primary purpose is the mental health treatment of minors must be fingerprinted and meet screening requirements;
Revising the list of professionals to include law enforcement officers so that officers are not required to be refingerprinted or rescreened if they are working or volunteering in a capacity that would otherwise require them to be screened;
Exempting, from the definition of “direct service provider;” individuals who are related to the client, the client’s spouse, and volunteers who assist on an intermittent basis for less than 20 hours of direct, face-to-face contact with a client per month;
Exempting, from any additional Level 2 background screening requirements, an individual who was background screened pursuant to an Agency for Health Care Administration (AHCA) licensure requirement if they are providing a service within the scope of their licensed practice;
Allowing the Department of Elderly Affairs (DOEA) to adopt rules to implement a schedule to phase in the background screening of individuals serving as direct service providers on July 31, 2010. The phase in must be completed by July 1, 2012;
Specifying that employers of direct service providers 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, shall be rescreened every five years, except in cases where fingerprints are electronically retained and monitored by the Department of Law Enforcement (FDLE);
Removing a provision relating to criminal offenses that was inadvertently applied to theDOEA;
Requiring fingerprint vendors to meet certain technology requirements;
Establishing a July 1, 2013, date for retention of prints for persons screened under ch. 435, F.S.;
Allowing an employer to hire an employee for the purpose of training and orientation before the employee completes the screening process. The employee may not have direct contact with vulnerable persons until the screening process is complete;
Providing personnel of a qualified entity, as defined in ch. 943, F.S., with the ability toapply for an exemption from disqualification from being employed;
Establishing a rescreening schedule for individuals required by the AHCA to be screened;
Requiring the Board of Nursing to waive background screening requirements for certain certified nursing assistants; and
Requiring the Department of Children and Family Services, the Department of Juvenile Justice, the AHCA, the DOEA, the Department of Health, the Agency for Persons with Disabilities, and the Department of Law Enforcement to establish a statewide background screening workgroup, providing duties of the workgroup, and requiring a report to the Legislature by November 1, 2011.
If approved by the Governor, these provisions would have take effect on July 1, 2011. (Never Happened)
With any inquiries regarding level 2 background screening or live scan fingerprinting in South Florida, please contact IDENTICO LLC (FDLE approved live scan vendor) today. You may call us at (954) 239-8590 or (888) 988-8969. For more information please visit our official webpage www.myidentico.com or visit our location at 3948 Pembroke Road, Suite E, Pembroke Park, FL, 33021
(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.
(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.”
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.
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:
Is a candidate for employment with a criminal justice agency;
Is a defendant in a criminal prosecution;
Concurrently or subsequently petitions for relief under s.943.0585 or s.943.059;
Is a candidate for admission to The Florida Bar;
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;
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
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.
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.
(a) “Arrest Report” means the detailed narrative written by the arresting law enforcement officer explaining the circumstances of the arrest.
(b) “Disposition” means the sentencing or other final settlement of a criminal case which shall include, regardless of adjudication, a plea of nolo contendere or guilty, or a conviction by a judge or jury.
(c) “Disqualifying Offense” means any criminal offense prohibited in Section 435.03, 435.04 or 408.809(5), F.S.
(d) “Exemption from Disqualification” means an exemption granted by the Agency following a review of the Application for Exemption, AHCA Form 3010-0019, October 2009, hereby incorporated by reference, and an informal hearing, if appropriate, during which the individual must present clear and convincing evidence to support a reasonable belief that he or she has been rehabilitated and does not present a danger to the health, safety, and welfare of the patient or individual as described in Section 435.07, F.S.
(e) “FBI” means the Federal Bureau of Investigation.
(f) “FDLE” means the Florida Department of Law Enforcement.
(g) “Level 1 Screening” means an assessment of the criminal history record obtained from the FDLE to determine whether screened individuals have any disqualifying offenses pursuant to Section 435.03 or 408.809(5), F.S. An analysis and review of court dispositions and arrest reports may be required to make a final determination.
(h) “Level 2 Screening” means an assessment of the criminal history record obtained through a fingerprint search through the FDLE and FBI to determine whether screened individuals have any disqualifying offenses pursuant to Section 435.04 or 408.809(5), F.S. An analysis and review of court dispositions and arrest reports may be required to make a final determination.
(2) Processing Screening Requests, Required Documents and Fees.
(a) A provider may conduct Level 1 background screening for employees either directly through the FDLE or through the Agency. Requests through the Agency must be submitted using the Agency’s background screening website at: http://www.ahca.myflorida.com/MCHQ/Long_Term_Care/Background_S creening/logon.shtml. A user code and password is required for use of this site. A request for a Level 1 screening through the Agency must be accompanied by the cost required by the FDLE to pay for the cost of processing the request.
(b) Persons required to undergo Level 2 background screening must submit an Applicant Fingerprint Card, incorporated herein by reference, and available from the appropriate Agency licensure unit or by submitting a request to: bgscreen@ahca.myflorida.com. A health care provider licensed pursuant to this chapter may submit a Level 2 request and make payment electronically or by mail. A request for a Level 2 screening through the Agency must be accompanied by the cost required by the FDLE and the FBI to pay for the cost of processing the request.
1. Electronic submissions must be made through the Agency’s background screening web site. The completed fingerprint card must be mailed to the Background Screening Unit at 2727 Mahan Drive, MS 40,Tallahassee, Florida 32308.
2. Mailed requests must be submitted to the Background Screening Unit at 2727 Mahan Drive, MS 40, Tallahassee, Florida 32308.
3. If a fingerprint card is rejected by the FBI due to illegible prints, the individual must submit a second fingerprint card in accordance with the guidelines established by the FBI. The second card must be submitted to the Agency within 21 days of the Agency’s request or the screening request will be considered withdrawn. If withdrawn, the individual must submit a new fingerprint card accompanied by the required fee.
(3) Screening of Administrators, Owners, Chief Financial Officers and Controlling Interests.
(a) Persons required to undergo Level 2 background screening in accordance with a licensure application, must submit the completed and signed fingerprint card and screening fee with an application for licensure to the appropriate Agency licensing unit.
(b) As an alternative to a new background screen, persons required to undergo Level 2 background screening in accordance with Section 408.809, F.S., that have been screened within the previous 5 years by the Agency, Department of Health, Department of Children and Family Services, Agency for Persons with Disabilities or Department of Financial Services, or if the applicant has a certificate of authority to operate a continuing care retirement community, may submit to the appropriate Agency licensing unit:
1. A copy of the background screening result, and
2. An Affidavit of Compliance with Background Screening Requirements, AHCA Form 3100-0008, October 2009, herein incorporated by reference, and available from the Agency for Health Care Administration at: http://www.ahca.myflorida.com/Publications/Forms/HQA.shtml.
(4) Results of Screening and Notification.
(a) Final results of background screening requests will be provided to the requesting provider through the Agency’s secure web site.
(b) When the dispositional information of a potentially disqualifying offense is unclear or not present in a criminal history from a Level I request, a notice will be sent to the requesting licensee or entity to obtain the arrest report and dispositional information from the individual being screened. The information must then be forwarded to the Agency for a final determination or show such information cannot be obtained. If a Level 2 criminal history is incomplete, a certified letter will be sent to the individual being screened requesting the arrest report and dispositional information. If the letter is returned unclaimed, a copy of the letter will be sent by regular mail. For Level 1 and Level 2, the missing information must be filed with the Agency within 30 days of the Agency’s request, or the individual is subject to automatic disqualification in accordance with Section 435.05(1)(d), F.S.
(c) When the Agency or the provider obtains information indicating an individual has a disqualifying offense pursuant to Chapter 435, F.S., the individual is prohibited from working in a position that requires background screening until such time as the individual has applied for and been determined to be exempt from such disqualification.
(d) An alleged offense is not disqualifying until such time as there has been a disposition.
(5) Exemption from Disqualification.
(a) Requests for an exemption from disqualification shall be submitted in writing to the Agency using the “Application for Exemption from Disqualification” AHCA Form 3010-0019, October 2009. This form may be obtained from the Agency for Health Care Administration, Background Screening Unit, 2727 Mahan Drive, MS #40, Tallahassee, Florida 32308 or through the Agency’s website at: http://www.ahca.myflorida.com/MCHQ/Long_Term_Care/Background_Screening/exemption.shtml.
(b) Individuals that are licensed or certified in a profession under the jurisdiction of the Department of Health must apply for an exemption to the appropriate licensing or certifying board at the Department of Health unless the individual will be working in a position other than for which they are licensed or certified.
(c) The individual shall bear the burden of setting forth clear and convincing evidence of rehabilitation which includes any information indicating the individual presents no danger to the safety or well being of others. The individual must present such evidence as arrest reports, court dispositions, parole/probation information, letters from employers, and personal references. Other documents that may be included are records of successful participation in a rehabilitation program, further education or training, community or church involvement, special awards or recognition or testimony by self or others.
(d) An “Application for Exemption” will not be reviewed until all required documents are obtained. If the application is deemed incomplete after 30 days of receipt by the Agency, the application will be withdrawn.
(e) In deciding whether to grant or deny an exemption request, the Agency shall consider factors such as the facts and circumstances surrounding the disqualifying offense(s), the nature of the harm to the victim, whether the individual is on probation or parole, whether restitution has been made, the length of time since the last offense, the history of the person since the disqualifying offense(s), work experience, personal references, performance evaluations, probation or parole violations, education, other evidence of rehabilitation, and the honesty and candor of the disqualified individual.
(f) Any exemption granted by the Agency is limited to the disqualifying offense or offenses committed prior to the date of the request for exemption.
(g) The Agency shall void any exemption granted to an individual when there is evidence that information which would adversely affect the decision was not made available at the time of the determination or there is a disposition of a new disqualifying offense since the date the exemption was granted.
(6) Unless otherwise specified, information requested pursuant to this section must be filed with the Agency within 21 days of the Agency’s request.
