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CriminalBackgroundChecks inHealthcareWHAT FLORIDA EMPLOYERS,EMPLOYEES, AND OWNERS NEEDTO KNOW.
Licensing & RegulationWHY IS HEALTH CARE SO REGULATED IN FLORIDA?
So What’s the Big Issue?Under Florida Law, health care workers,including ALFs are required to undergocriminal background checks in order tohold employment.
Why does Florida require criminalbackground checks of health care workers? Patient safety & security Vulnerable populations (elders, children,disabled, etc.) Liability
Florida StatisticsLicensed health care workers – 1,000,000Other workers – 1,000,000Total health care workers in FL – 2,000,000
Who Must Undergo Background Check? UnderFlorida Law, health care workers are required toundergo criminal background checks in order to holdemployment. This applies to: Licensed health care professionals; Other individuals who work in the health care industry; and Owners
WHAT IS THE LAW?
Background Checks are Mandated byLaw for Assisted Living Facilities429.174 Background Screening. – The agency shall requirelevel 2 background screening for personnel as required insection 408.809(1)(e) pursuant to chapter 435 and section408.809.Shall mandatory
Section 408.809, Florida Statutes – Backgroundscreening; prohibited offenses.BACKGROUND SCREENING MUST BE CONDUCTED ON: Employees The Administrator or person who is responsible for day-to-day operations. The Financial Officer or person who is responsible for the financialoperations. Any person who has a controlling interest in the organization. Any person seeking employment with a licensee or provider who isexpected to, or whose responsibilities may require him or her to, providepersonal care or services directly to clients or have access to clientfunds, personal property, or living areas; and any person contracting witha licensee or provider whose responsibilities require him or her to providepersonal care or personal services directly to clients.
TWO TYPES OF CRIMES:FelonyA crime for which you can besentenced to 1 year and 1 day ormore of jail time. Considered moreserious than a misdemeanor.MisdemeanorA crime for which punishment isless than 1 year, and a day.
Automatic Disqualification Sexualpredator as designatedpursuant to section 775.21;Disqualification fromemployment may notbe removed from, nor Career offender pursuant to sectionmay an exemption be 775.261; orgrantedto,any Sexual offender pursuant to sectionperson who is a:943.0435, unless the requirement toregister as a sexual offender has beenremovedpursuanttosection943.04354.
Disqualifying Offenses Domestic violence offenses (chapter 741) Murder (section 782.04) Manslaughter (section 782.07) Aggravated assault (section 784.021) Aggravated battery (section 784.045) Kidnapping (section 787.01) Luring or enticing a child (section 787.025) Removing a minor beyond the state or concealing the location of a minorwith criminal intent pending custody proceedings (section 787.04[2]) Removing a minor beyond the state or concealing the location of a minor
Disqualifying Offenses (Continued) Crimes relating to sexual activity with or solicitation of a child by a person in familial or custodialauthority (section 794.041) Unlawful sexual activity with certain minors (section 794.05) Crimes involving female genital mutilation (section 794.08) Arson (section 806.01) Incest (section 826.04) Child abuse, aggravated child abuse, or neglect of a child (section 827.03) Delinquency or dependency of a child (section 827.04) Crimes relating to sexual performance by a child (section 827.071) Child pornography (chapter 847) Sexual misconduct in juvenile justice programs (section 985.701) A misdemeanor offense prohibited under any of the following statutes:
Two State Agencies RegulateHealthcare Department of Health(DOH)Agency for Health CareAdministration (AHCA)[Professionals][Facilities & Medicaid]
Florida Departmentof HealthThis government agency licensesand regulates 40 health careprofessions, 7 types of facilities, and200 types of licenses.
Agency for HealthCare AdministrationThis government agency licensesmore than 50 types of health carefacilitiesandrunsFlorida’sMedicaid program.
DuvalorOkaloosaBd radfSantaRosaFranklinClaySt VolusiaAHCARegion 7 - ion 2 - TALLAHASSEEsellaSarasotaManateeIndian RiverOkeechobeeHardeeHighlandsRegion 8 – FORT MYERSRegion 3 - GAINESVILLE386.418.5330Region 4 - JACKSONVILLE904.359.6680Region 5 - ST. PETERSBURG727.552.1145239.338.2621Region 9 – WEST PALM BEACH561.840.0191Region 10 – FT. minole7OrangeHernandoHgh illsbRegion 6 - TAMPASumterPinRegion 1 - nryLee954.202.3250Region 11 – MIAMISt. LuciePalm Beach10CollierBroward305.470.5800Monroe11Dadesag
What do you doif you have abackgroundproblem?
Don’t Stress!!
There may be a waythrough this process It’s called anExemption fromDisqualification!
Two Types of Letters
LicensedProfessionals:You must apply to yourprofessional board for anexemption from disqualification.
Non-LicensedProfessionals:You must apply to Agency forHealth Care Administration(AHCA) for an exemption fromdisqualification.
Applicant forEmploymentAHCABackgroundScreening WebsiteALFCare Provider Background ScreeningClearinghouse Q/Central Services/Background Screening/BGS results.shtml
Form Available at:http://ahca.myflorida.com/BackgroundScreening
Florida Law States: “ the employee must demonstrate by clear and convincing evidence thatthe employee should not be disqualified from employment. Employeesseeking an exemption have the burden of setting forth sufficient evidenceof rehabilitation, including, but not limited to, the circumstancessurrounding the criminal incident for which an exemption is sought, thetime period that has elapsed since the incident, the nature of the harmcaused to the victim, and the history of the employee since the incident, orany other evidence or circumstances indicating that the employee will notpresent a danger if continued employment is allowed ”. Section 435.07(3), Florida Statutes.
Specific factors that the State looks at include:(1)(2)(3)(4)(5)(6)(7)(8)(9)(10)(11)(12)The facts and circumstances surrounding the offense(s);The nature of the harm to the victim;Whether the person is on probation or parole;The length of time since the last offense;The history of the person since the disqualifying offense;Work experience;Personal references;Performance evaluations;Probation or parole violations;Education;Other evidence of rehabilitation;Honesty and candor
Review Process These factors are looked at by DOH andAHCA officials to determine whether anindividual is fit for employment in thehealth care industry. If the officials conclude that despite thecriminal background history the employeeis eligible for employment then a letter isissued granting an “Exemption fromDisqualification.”
ExemptionLetter
Situation #1 – ALF disciplined for Out ofDate Background Check Facts:AHCA surveyed ALF. Long time employee was backgroundchecked in 2010 according to ALF administrator. Surveyorrequested new check. Since 2010, employee had been arrested. Violation: Yes- Administrative Complaint filed against the ALFseeking fines and possible license revocation. Disposition:Settlement Agreement: reprimand & fine.
Situation #2 – ALF Administrator WronglyRelied on Information from Employee Facts:Employee told Administrator she worked for a privateindividual and that a background check was performed by individual. Violation: Yes- it’s the Administrator’s job to make sure that newemployees are background checked. Disposition:Reprimand of license, fines, and probation.
Situation #3 – ALF Administrator WronglyRelied on Information from Employee Facts:AHCA does a survey and asks ALF Administrator for a copyof Employee Roster. Surveyor then checks roster against AHCAdatabase and determines there are 3 felons working at facility. Violation: Yes- it’s the Administrator’s job to make sure that newemployees are background checked.
Situation #4 – Change of Ownership Facts:Owner enters into a buy/sell agreement with Buyer to sellALF. Owner should have mentioned to Buyer the Florida Lawrequiring Owners and Operators to go through backgroundscreening. It turns out Buyer has a criminal record. Result: AHCA denies change of ownership.
Final Observations & Recommendations Regularly review your employee roster. Institute a policy that employees and owners must notifymanagement of an arrest or criminal charge. Keep up to date on criminal background checks. Be aware of deadlines. Seek the advice of an experienced health care attorney. Keep copies of all past arrest and court records. Do not alter or erase records Have a strategy for responding. DO NOT IGNORE THESITUATION!
Jeffrey S. HowellRickey L. Strong201 S. Monroe St, 4th FloorTallahassee, Florida 32301850-222-7000www.floridahealthcareattorney.com
Background Checks are Mandated by Law for Assisted Living Facilities 429.174 Background Screening. - The agency shall require level 2 background screening for personnel as required in section 408.809(1)(e) pursuant to chapter 435 and section 408.809. Shall mandatory
