Current through Register Vol. 49, No. 9, September, 2024
SECTION I.
AUTHORITY
These rules and regulations requiring criminal record checks
for employees of home health and hospice facilities in the State of Arkansas
are duly adopted and promulgated by the Arkansas State Board of Health pursuant
to the authority expressly conferred by laws of the State of Arkansas in Act
990 of 1997.
These rules and regulations shall be promulgated as a
supplement to the licensure manuals for home health and hospice
facilities.
SECTION II.
PURPOSE
The purpose of these sections is to provide direction to home
health or hospice agencies in the state of Arkansas as it relates to criminal
record checks on current or potential employees.
SECTION III. DEFINITIONS
Bureau means the Identification Bureau
of the Department of the Arkansas State Police.
Care means treatment, services,
assistance, education, training, instruction, or supervision for which the
care-giving person or entity is reimbursed either directly to or by arrangement
with a home health or hospice agency.
Department means the Arkansas
Department of Health.
Determination means a Department's
determination that an applicant or employee is or is not disqualified from
employment or that a home health or hospice is disqualified from licensure
based on the criminal history of the operator.
Division means the Division of Health
facility Services, Arkansas Department of Health
Elderly means persons aged 65
or older.
Employee means any person who provides
caxe to individuals on behalf of, under the supervision of, or by arrangement
with a home health or hospice agency or any person employed by a home health or
hospice agency, unless the person is a family member, a volunteer or works in
an administrative capacity.
Felony conviction in the criminal history
report means a conviction on any of the major crimes listed in ACT
990 of 1997, Section 5, subsection b (Attachment I).
Home Health Agency means a service as
defined by A.C.A. §
20-10-801 whether or not the
agency has applied for or possesses any license necessary for operation.
Hospice Agency service as defined by
A.C.A. §
20-7-117 whether or not the agency
has applied for_or possesses a license.
Individuals with disabilities
means persons who require assistance to perform one or more of the
following tasks of daily living: feeding, mobility, toileting, or
medication.
Index
means the database,
maintained by the Bureau, of criminal records checks that have been conducted
on applicants for employment with and employees of home health or hospice
agencies.
National criminal history check
means a review of national criminal records maintained by the Federal
Bureau of Investigation based on fingerprint identification or other positive
identification methods.
Provisional License
means
a forty-five day license issued to a home health or hospice agency whose
operator has been found to have a felony conviction in the criminal history
report.
Operator
means a person
responsible for the day to day operation of the home health or hospice
agency.
Report
means a statement
of the criminal history of an applicant, employee, or operator issued by the
Bureau.
State criminal history check
means a review of state criminal records
conducted by the Bureau.
SECTION
IV. HOME HEALTH OR HOSPICE AGENCIES
A. All home health and hospice agencies must
comply with these regulations as they apply to that type of agency. If an
operator or agency fails or refuses to cooperate in obtaining criminal record
checks, such circumstances shall be grounds to deny or revoke the home health
or hospice agency's license.
B. Any
unlicensed agency providing home health or hospice services violating these
rules and regulations shall be guilty of a Class A misdemeanor for each
violation according to Act 990 of 1997.
SECTION V. OPERATORS
A. Each home health and hospice agency obtain
a state criminal history check and a national criminal history check on each
operator if the operator has not been continuously employed within the State of
Arkansas within the past twelve (12) months and undergone a criminal history
check within the past twelve (12) months. Examples of evidence to verify
continuous employment, may include, but not be limited to, payroll check stubs,
employment record's, tax records, etc. Verification of a previous criminal
history check may be obtained from the Division if the check was conducted
after October 1, 1997. A criminal history check does not have to be repeated on
an operator if the individual has served continuously in a position as an
operator with not more than a sixty day interruption in service.
1. For a home health or hospice agency
initially applying for licensure the process will include the following:
a. Evidence of a completed application for a
criminal history check on the operator or, if exempt under Section A, a copy of
the criminal history check and a statement from the agency that the information
for exemption has been verified, must be submitted to the Division with any
initial applications for licensure of a home health or hospice
agency;
b. Upon receiving the
results of the state criminal history check and the national criminal history
check the Division will issue determination whether the home health or hospice
agency is disqualified from licensure;
c. If a home health or hospice agency
initially applying for licensure is disqualified from licensure based on a
felony conviction in the criminal history report of the operator the
application may be resubmitted with a different operator. Sections A.l.a and
A.l.b. will be followed once the application has been resubmitted. If the
application is not resubmitted within fifteen (15) days of notification of the
denial the application will be considered null and void.
2. For a home health or hospice agency that
is currently licensed but is completing the application for the annual renewal
of the agency the process will include the following:
a. Evidence of a completed application for a
criminal history check on the operator must be submitted to the Division with
the annual renewal application. If the first letter of the county in which the
agency is located begins with the letter A-L the information must be submitted
with the application for renewal for the calendar year 1999; Counties M-Z must
be submitted with the application for renewal for the calendar year
2000.
b. Upon receiving results of
the state criminal history check and national history check the Division will
issue a determination whether the agency may continue licensure based on
results of the operator's criminal history check.
c. The Division will issue a forty-five day
provisional license to a home health or hospice agency whose operator has been
found guilty or has plead nolo contendere to any of the offenses listed in
Section X. A home health or hospice agency has fifteen days from the date the
provisional license was issued to resubmit an application for licensure with a
new operator. If a another license application is not received within fifteen
days of the specified date the entity's license will be immediately
revoked.
SECTION VI. APPLICANTS AND EMPLOYEES
A. Each home health or hospice applicant or
employee who will be providing care for the elderly or individuals with
disabilities, must complete a state criminal history check if the applicant or
employee:
* Does not hold a professional license as described in Section
XI; or
* Has not maintained continuous employment in the State of
Arkansas and successfully completed, a state criminal history check.
A federal criminal history check must also be completed if the
applicant or employee:
* Has not lived continuously in the State of Arkansas for the
past five years; or
* Has not provided care to the elderly and/or individuals with
disabilities for a continuous 60 day immediately prior to the
application.
The home health or hospice agency will be responsible for
verification of this information. Examples of evidence that can be used to
verify the above may include, but is not limited to, employment records,
payroll check stubs, tax records, rent/house payment records, utility bills,
school records, etc. Verification of a previous criminal history check may be
obtained from the Division if the check was conducted prior to October 1,
1997.
Note: Section XLprovides a list of immune licensed
individuals. The term professional does not include certification. Certified
persons include, but are not limited to certified nursing assistants and
certified home health aides.
1. For persons hired after October 1,1997 the
following process must be followed:
a. If a
home health or hospice agency intends to make an offer of employment to a
person, that person must submit an application for a criminal history check
along with the application for employment. The application for the criminal
history check shall be forwarded directly to the Bureau.
b. The home health or hospice agency may make
an offer of temporary employment to a person pending receipt of notification
from the Bureau that the Bureau's index has been checked and no criminal
history has been found and the Division has checked its database and no
criminal history has been found. The home health or hospice agency may continue
to temporarily employ the person until the licensing agency issues a
determination, based on the information received from the Bureau, whether the
person is disqualified from employment. If the licensing agency determines that
the person is disqualified from employment based on felony convictions in the
criminal history report the person must be terminated if temporarily employed
or denied employment if not temporarily employed. If a criminal history is
found in the Bureau's index the person is disqualified from employment until
the criminal history check is completed and the Division issues a
determination.
2. For
persons hired prior to October 1,1997 the following process must be followed
beginning January 1, 1998:
a. For persons
hired during an even year an application for a criminal history check must be
submitted to the Bureau in the month hired in the year 1998. For persons hired
in an odd year an application for a criminal history check must be submitted to
the Bureau in the month hired in the year 1999.
b. Once application for a criminal history
check has been submitted, a home health agency may continue to employ a person
pendingreceipt of notification from the Bureau that the Bureau's index has been
checked and no criminal history found and the Division has checked its database
and no criminal history has been found. If a criminal history is found in the
Bureau's index the person is disqualified from employment until the criminal
history check is completed and the Division issues a determination based on the
criminal history report obtained from the Bureau.
B. A home health or hospice must
inform applicants and employees that continued employment is contingent on the
results of criminal history checks and the individual has a right to obtain a
copy of their criminal history report from the Bureau.
SECTION VII. APPLICATIONS
A. Applications for a criminal history check
will be provided to the agency by the Division.
No other applications will be accepted. The completed
application for a state criminal history check must include the following on
each :
1. Facility Identification
Number
2. Facility Name
3. Facility Address
4. Facility Telephone Number
5. Full Name of Applicant
6. Social Security Number
7. Mailing Address of Applicant
8. Date of Birth
9. Gender
10. Race
11. Driver's License Number and State of
Issue
12. A list of all felony and
misdemeanor charges for which the applicant was found guilty or plead nolo
contendere.
The application must be signed by the applicant and notarized
by a notary public. The original application along with the appropriate fee
must be sent directly to the Bureau at the address provided on the application.
A copy of the application must be sent to the Division.
B. If a national history check is
required the fingerprint card must accompany the application for the state
criminal history check. The fingerprint card will be provided by the
Division.
SECTION VIII.
REAPPLICATION REVIEW
A. Reapplication reviews
will be granted to operators, employees, and potential employees who are able
to provide proof that the felony convictions shown in the criminal records
check are incorrect. These appeals may take the form of:
1. A written request to the Identification
Bureau of the Department of the Arkansas State Police providing another
application and fee for the state criminal history check along with additional
information that would aid in the identification of records pertaining to the
applicant.
2. A letter written to
the Arkansas Department of Health Chief Counsel requesting review of a second
state criminal record check to affect the determination made by the Department.
If this review provides no information of felony conviction for any of the
offenses listed in ACT 990 of 1997, Section 5, subsection b (Attachment I),
then the first determination of employment disqualification will be
overturned.
B.
Applicants who have received a felony conviction as indicated on their
national criminal record check shall not be afforded the reappUcation review
process.
SECTION
IX. MAINTAINING RECORDS AND CONFIDENTIALITY
A. Each qualified entity shall maintain
evidence that criminal history checks have been initiated on all operators and
employees and a copy of each determination received from the Division. This
evidence must be made available for inspection by the Arkansas Crime
information Center, the Bureau and the Division upon request. This evidence
must be available for all current operators and employees and for any employees
that were employed within the past twenty-four (24) months.
B. Each home health or hospice agency must
have safeguards to ensure the confidentiality of criminal history check records
maintained.
C. For records that are
no longer required and the agency wishes to destroy the agency must have a
policy on how these records will be destroyed.
SECTION X. LIST OF FELONIES
1.
Capital murder, as prohibited
in A.C.A.
5-10-101;
2.
Murder in the first degree and
second degree, as prohibited in A.C.A.
5-10-102 and 5-10-
103;
3.
Manslaughter, as prohibited in A.C.A.
5-10-104;
4.
Negligent homicide, as
prohibited in A.C.A. 5-10-105;
5.
Kidnaping, as prohibited
in A.C.A. 5-11-102;
6.
False imprisonment in the first
degree, as prohibited in A.C.A.
5-11-103;
7.
Permanent detention or restraint,
as prohibited in A.C.A.
5-11-106;
8.
Robbery, as prohibited in
A.C.A. 5-12-102;
9. Aggravated robbery, as prohibited in
A.C.A. 5-12-103;
10.
Battery in the first degree,
as prohibited in A.C.A.
5-13-201;
11.
Aggravated assault, as
prohibited in A.C.A.
5-13-204;
12.
Introduction of controlled
substance into body of another person, as prohibited in A.C.A.
5-13-210;
13.
Terroristic threatening in the
first degree, as prohibited in A.C.A.
5-13-301;
14.
Rape and carnal abuse in the first
degree, second degree, and third degree, as prohibited in A.C.A.
5-14-103,
5-14-106;
15.
Sexual abuse in the first and
second degree, as prohibited in A.C.A.
5-14-108 and
5-14-109;
16.
Sexual solicitation of a child,
as prohibited in
5-14-110;
17.
Violation of a minor in the first
degree and second degree, as prohibited in A.C.A.
5-14-120 and
5-14-121;
18.
Incest, as prohibited in
A.C.A. 5-26-202;
19.
Offenses against the family,
as prohibited in A.C.A.
5-26-303 through
5-26-306;
20.
Endangering the welfare of
incompetent person in the first degree, as prohibited in A.C.A.
5-27-201;
21.
Endangering the welfare of a minor
hi the first degree, as prohibited in A.C.A.
5-27-221;
22.
Permitting child abuse, as
prohibited in subdivisions (a) (1) and (a) (3) of A.C.A.
5-27-221;
23.
Engaging children in sexually
explicit conduct for use in visual or print media, transportation of minors for
prohibited sexual conduct, or pandering or possessing visual or print medium
depicting sexually explicit conduct involving a child, or use of a child or
consent to use of a child in a sexual performance by producing, directing, or
promoting a sexual performance by a child, as prohibited in A.C.A.
5-27-303,
5-27-304,
5-27-305,
5-27-402, and
5-27-403;
24.
Felony adult abuse, as
prohibited in A.C.A.
5-28-103;
25.
Theft of property, as
prohibited in A.C.A.
5-36-103;
26.
Theft by receiving, as
prohibited in A.C.A.
5-36-106;
27. Arson, as prohibited in A.C.A.
5-38-301;
28. Burglary,as prohibited inA.C.A.
5-39-201;
29.
Felony violation of the Uniform
Controlled Substances Act, as prohibited in A.CA. 5- 64-401;
30.
Promotion of prostitution in the
first degree, as prohibited in A.CA.
5-70-104;
31.
Stalking, as prohibited in
A.CA. 5-71-229;
32.
Criminal attempt, criminal
complicity, criminal solicitation, or criminal conspiracy, as prohibited
in A.CA. 5-3-201,
5-3-202,
5-3-301, and
5-3-401.
SECTION XI. IMMUNE PROFESSIONAL LICENSES
1.
Licensed professional counselors,
as outlined in A.C.A.
17-27-101;
2.
Social workers, as outlined
in A.CA. 17-46-101;
3.
Dentists, as outlined in A.CA.
17-82-101;
4. Nurses, as outlined in A.CA.
17-87-101;
5.
Occupational therapists, as
outlined in A.C.A.
17-88-101;
6.
Pharmacists, as outlined in
A.CA. 17-92-101;
7.
Physical therapists, as outlined in A.CA.
17-93-301;
8.
Physicians and surgeons, as
outlined in A.CA.
17-95-201;
9.
Podiatrists, as outlined in
A.CA. 17-96-101;
10. Psychologists and psychological
examiners, as outlined in A.CA.
17-97-101;
11.
Speech-language pathologists and
audiologists, as outlined in A.CA. 17-100-101; or
12.
Nursing home administrators, as
outlined in A.C.A.
20-10-401.
