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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.