Current through Register Vol. 49, No. 2, February 2024
REGULATION 11
-CRIMINAL BACKGROUND
CHECKS
11-00-0001
-DEFINITIONS
(a) "Board" means
the Arkansas State Board of Pharmacy;
(b) "Criminal background check" means a state
and nation-wide criminal records check conducted by the Arkansas State Police
and the Federal Bureau of Investigation, including the taking of
fingerprints;
(c) "Provisional
license or registration" means a non-renewable, provisional license or
registration that shall expire when the results of the criminal background
check are received by the Board or 180 days after issue, whichever comes first.
An approved license issued to a pharmacist approved for reciprocity is also
subject to the provisions of Regulation 02-03-0001.
(11/15/2003)
11-00-0002
-BACKGROUND CHECK REQUIRED(a)
The Board shall not issue an initial license/registration, or reinstate a
license/registration until the state and federal criminal background checks
conducted by the Arkansas State Police Identification Bureau and the Federal
Bureau of Investigation have been completed.
(b) The Board may issue a provisional license
or registration to applicants for a new pharmacist or intern license, or for a
new or reinstated pharmacy technician registration as provided in this
Regulation. (11/15/2003)
11-00-0003
-APPLICATION
PROCEDURE(a)
(1) Effective March 1, 2004, prior to or
contemporaneously with filing an application form for the applicable license or
registration, each applicant for a new intern or pharmacist license, or a new
or reinstated registration as a pharmacy technician issued by the Board, except
as explicitly provided herein, shall apply, using forms furnished by and
pursuant to instructions provided by the Board, for state and national criminal
background checks, to be conducted by the Arkansas State Police Identification
Bureau and the Federal Bureau of Investigation.
(2)
(A) An
applicant for a pharmacist license, who upon licensure will not practice
pharmacy while physically present in the State of Arkansas, is not required to
apply for criminal background checks.
(B) Before performing any practice of
pharmacy while physically present within the State of Arkansas, each such an
applicant shall:
(i) cause criminal background
checks described herein to be conducted and delivered to the Board; and
(ii) obtain documentation from the
Board of its approval of the pharmacist's practice of pharmacy while physically
present in Arkansas.
(b) Each applicant shall, prior to or
contemporaneously with applying for a license or registration identified in
paragraph (a) of this section, submit the form furnished by the Board
authorizing the release of criminal background check reports to the Board and
shall pay any applicable fees, associated with the state and federal criminal
background checks, pursuant to written instructions provided by the Board. The
release shall authorize the Identification Bureau of the Arkansas State Police
to forward all information obtained concerning the applicant in regard to a
conviction of any offense referred to in 11-00-0004 to the Board.
(c) The state and federal criminal background
checks conducted by the Arkansas State Police and the Federal Bureau of
Investigation shall have been completed no earlier than twelve (12) months
prior to the application for an initial license/registration issued by the
Arkansas State Board of Pharmacy.
(d) Background checks used to obtain a
license or registration issued by the Board may be used for subsequent
applications for another new license or registration issued by the Board for a
period of up to four years after the date of the original license or
registration. (11/15/2003)
11-00-0004
-ELIGIBILITY FOR
LICENSE/REGISTRATION(a) No person
shall be eligible to receive or hold an intern or pharmacist license or a
pharmacy technician registration issued by the Board if that person has pleaded
guilty or
nolo contendere to, or has been found guilty of any
of the following offenses, regardless of whether an adjudication of guilt or
sentencing or imposition of sentence is withheld, by any court in the State of
Arkansas or of any similar offense by a court in another state or of any
similar offense by a federal court (collectively "conviction"):
(1) Any felony;
(2) Any of the following:
Title |
Ark. Code Number |
Theft |
5-36-103(b)(5), 104(c)(3) & (4), 105(b)(2)& (3),
106(e)(3), & 202 |
Forgery and Fraudulent Practices |
5-37-101-525 |
Fraud Against Government |
5-55-101-401 |
Fraudulent Issuance of Warrants |
6-20-407 |
Employer, Employee liens |
18-42-106 |
Obtaining Information by Fraudulent Representation |
20-13-705 |
Insurance Holding Companies |
23-63-522 |
False Reports, Motor Fuel Taxes |
26-56-107 |
Fraudulent Applications |
27-14-303 |
Uniform Controlled Substances Act |
5-64-101 - 1303 |
Pharmacy Licensing Law |
17-92-101 - 1007 |
Food, Drag & Cosmetics Act |
20-56-205, 210, 211, 215, & 216 |
Uniform Narcotic Drag Act |
20-64-201 et seq. |
Controlled Substances & Legend Drugs |
20-64-501 et seq. |
(b)
(1) At the time of application for
licensure/registration, an applicant who has such a conviction must cause the
following certified documentation to be transmitted
directly
to the Board staff by the court or other entity or individual that is providing
documentation about the applicant:
(A) Copies
of court documents pertinent to conviction, i.e., information or indictment,
judgments, orders, final rulings, etc. including documents specifying
conviction and sanctions, and proof of completion of sanctions and
penalties;
(B) Evidence regarding
compliance with terms of probation, parole, restitution, or any other
sanctions; and
(C) Status of any
probation, parole, court-ordered restitution or any other
sanctions.
(c)
In addition, an applicant can submit any evidence of rehabilitation, examples
of which include, without limitation:
(C) A
letter from the applicant describing underlying circumstances for disciplinary
action and/or arrest and conviction record as well as rehabilitation efforts or
changes in life since that time to prevent future problems.
(D) Letters of reference from past and/or
current employers.
(E) Letters of
reference from pharmacy instructors concerning attendance, participation and
performance in pharmacy programs.
(F) Letters from treatment/recovery program
attesting to current sobriety and length of time of sobriety if there has been
a history of drug or alcohol abuse.
(G) Letters of reference from other
knowledgeable professionals, such as probation or parole officers.
(H) Fitness to practice release letter from
appropriate health care professional.
(I) Any other pertinent information may be
considered.
(d) Upon
written request submitted with the application or after receipt of the criminal
background check report, an applicant who has a criminal conviction may seek to
have the conviction waived and application approved, subject to appropriate
terms and conditions. The request for waiver shall be on a form provided by the
Board and shall be accompanied by all documentation identified in paragraph (b)
of this section that has not already been delivered to the Board. The request
for waiver shall not be considered until the application, all fees, all the
documentation identified in paragraph (b) of this section, both federal and
state criminal background check reports, and a request for wavier form stating
the applicant's reasons why the conviction should be waived are received by the
Executive Director. The Executive Director or his designee shall determine
whether the applicant is rehabilitated, the conviction has served the intended
disciplinary purpose and the applicant can practice or work in the capacity
that is the subject of the application without undue risk to the public health,
safety or welfare because of the subject conviction. The Executive Director, or
his designee, shall consider all relevant data, including without limitation:
(1) The age at which the crime was
committed;
(2) The circumstances
surrounding the crime;
(3) The
length of time since the crime;
(4)
Subsequent work history;
(5)
Employment references;
(6)
Character references, and
(7) Other
evidence demonstrating that the applicant does not pose a threat to the public
health, safety or welfare, including without limitation:
(A) Whether the applicant is on probation,
parole, or probation as a result of suspended imposition of sentencing or
similar deferral of judgment or sentencing, is in compliance with the terms and
conditions of any such parole or probation, has complied with any terms and
conditions of the judgment of conviction including payment of restitution and
any fines, costs or other monetary payments.
(B) Whether the applicant has a currently
suspended or revoked pharmacist or intern license, or pharmacy technician
license or registration in any jurisdiction;
(C) The applicant's activities, employment,
relationships and other facts since the conviction;
(D) Whether the applicant has provided
information requested by the Board;
(E) Whether the applicant has falsified or
misrepresented facts to the Board in the application or related
procedure;
(F) Whether the
applicant has a conviction that relates to the practice of pharmacy or other
conduct regulated by the Board;
(G)
Any Evidence of Rehabilitation as described above;
(H) Whether the applicant has more than one
criminal conviction; or
(I) Whether
the applicant has been pardoned or granted clemency by the governor, or the
criminal conviction was expunged.
(e) If an individual notifies the Executive
Director in writing that he/she desires a hearing regarding a request for a
waiver, the Executive Director will schedule the individual for a hearing. If
no hearing is requested, the Executive Director or his designee will make a
determination on the request upon the file documentation obtained by the Board
and that submitted by the applicant.
(f) The Executive Director or his designee
shall notify the applicant in writing within seven (7) working days after
determining whether to waive an applicant's conviction. (11/15/2003, Revised
03/01/2004)
11-00-0005
-BOARD WAIVER OF CONVICTION(a)
In the event that the Executive Director or his designee determines not
to waive a conviction, an applicant or person holding a provisional license or
registration, who has a history of any conviction of an offense identified in
11-00-0004, can request a Board waiver of the conviction.
(b) The request for a Board waiver shall be
made in writing to the Executive Director and received on or before thirty (30)
calendar days after the date of service of the Executive Director's denial of
the applicant's request for waiver. The date of said service shall be the date
that the denial of the waiver is mailed, certified mail, return receipt
requested to the applicant. The request for waiver shall comply with the
provisions of Section 11-00-0004.
(c) If an individual notifies the Board in
writing that he/she desires a hearing regarding his/her request for a waiver,
the Board will schedule the individual for a hearing before the Board, a
committee, or a designated referee or examiner.
(d) If the individual does not notify the
Board that he/she desires a hearing regarding their request for a waiver, the
Board will not hold a hearing and may take action regarding their request for a
waiver based upon the applicant's file documentation obtained by the Board and
that submitted by the applicant.
(e) The Board shall consider the matters as
identified in section 11-00-0004 above in determining whether to waive a
conviction and the Board's decision shall be served upon the applicant within
seven working days after deciding whether to waive the conviction.
(11/15/2003)
11-00-0006
-PROVISIONAL LICENSE AND REGISTRATION
(a)
(1) The
Board may issue a provisional license or registration, limited to six months
duration only to applicants who:
(A) certify
on their Arkansas State Board of Pharmacy application that they have no
criminal conviction; and
(B) meet
all other qualifications for licensure or registration established by the
Arkansas State Board of Pharmacy, and;
(C)
i.
certify that they have submitted an Arkansas State Police and FBI Criminal
Background Check form and associated fees pursuant to written instructions
provided by the Board.
ii. Or, at
the Board's discretion, when state criminal background check reports are
available within a reasonable time after application, and the Board has
received a state criminal background check report on the applicant acceptable
to the Board and pursuant to this regulation, and the applicant certifies that
he/she has submitted an Arkansas State Police and FBI Criminal Background Check
form and associated fees for the FBI check pursuant to written instructions
provided by the Board.
(2) The provisional license or registration
shall permit the subject thereof to temporarily perform, pending the Board's
receipt of the criminal background check report(s), the activities authorized
by the license, permit or registration that is the subject of the application.
(3) An applicant who discloses any
conviction identified in Section 11-00-0004 on the application form shall not
be eligible to receive a provisional license or registration and will be
considered for the applicable license or registration upon the Board's receipt
of the criminal background check reports.
(b)
(1)
Upon receipt of both the federal and state criminal background check reports
containing no conviction of any offense identified in Section 11-00-0004, and
upon the applicant meeting all other qualifications for the subject license/
registration, the Board shall issue the appropriate license/registration to the
applicant.
(2)
(A) Upon receipt of either criminal
background check report that contains a conviction of an offense identified in
Section
11-00-0004, the
Executive Director shall cause to be served upon the applicant notice of the
reported conviction, the applicant's failure to disclose the conviction in the
application, any other relevant facts or law, and the immediate revocation of
the provisional license/registration pursuant to A.C.A. §
17-92-317,
and the opportunity for a hearing.
(B) In order to obtain a hearing on the
subject issues, an applicant shall serve a written request for a hearing upon
the Executive Director within ten (10) days of service upon the applicant of
the notice described in the preceding paragraph.
(C) After receipt of such a request from an
applicant within the requisite time period, the Executive Director or his
designee shall conduct a hearing and serve the decision resulting therefrom
upon the applicant. The applicant shall produce at said hearing certified
copies of the information/indictment and judgment of conviction or other
dispositive order(s) regarding the subject conviction.
(D) In the event the decision resulting from
the hearing described in the preceding subparagraph is adverse to the
applicant, the applicant can serve a written request for a de novo
hearing upon the Executive Director within thirty (30) days after
service of said decision. Said de novo hearing shall be before
the Board, members thereof or a designated referee or examiner. The Executive
Director shall schedule and serve notice thereof upon the applicant.
(c) Failure of an
applicant to disclose any conviction of an offense identified in Regulation
11-00-0004 shall constitute grounds for the suspension, revocation, or denial
of a license or registration.
(d)
Fees and applications.
(1) The
license/registration fee shall be submitted with the application.
(2) The fee is not refundable. (11/15/2003,
Revised 03/01/2004)
11-00-0007
-APPLICANT
CONFIDENTIALITY(a) All reports
obtained under these regulations are confidential and are restricted to the
exclusive use of the Board. The information contained in reports shall not be
released or otherwise disclosed to any other person or agency except by court
order and are specifically exempt from disclosure under the Arkansas Freedom of
Information Act (A.C.A.
25-19-101, et
seq.)
(b) Criminal conviction
reports may be reviewed by or provided to the subject, the subject's attorney
or other designee at the request of the subject as follows:
(1) To the subject, in person, upon his
producing positive verification acceptable to the Board of his/her identity, or
by mail upon receipt of an acknowledged authorization in a form acceptable to
the Board; the Board will mail a copy of the report by certified mail, return
receipt requested, delivery restricted to the subject or his authorized agent
at the address stated in the request.
(2) To the subject's attorney or other
designated individual, in person, upon presentation of an acknowledged
authorization by the subject and presentation of positive verification of the
attorney's or designated individual's identity, both of which are acceptable to
the Board. (11/15/2003)
11-00-0008
-CHALLENGES TO THE ACCURACY
OF THE REPORT(a) The Board shall make
determinations based on the information obtained from the Bureau and shall not
be responsible for allegations regarding the disposition, expungement or
accuracy of the information.
(b) A
person may challenge the completeness or accuracy of a report of criminal
conviction information issued by the State Police Identification Bureau or the
Federal Bureau of Investigation as provided in A.C.A. §
12-12-1013,
as amended.
(c) Upon receipt of a
corrected criminal conviction report, the Board shall conduct a new evaluation
of the report and the applicant's qualifications for the applicable license or
registration. (11/15/2003)