Current through Register Vol. 47, No. 6, September 18, 2024
(1)
Definitions. The following definitions apply for the purposes
of this rule.
"Background check" or "record
check" means criminal history, child abuse and dependent adult abuse
record checks.
"Certified nurse aide training program"
means a program approved in accordance with the rules for such programs adopted
by the department of human services for the training of persons seeking to be a
certified nurse aide for employment in a facility as defined by this rule or in
a hospital as defined in Iowa Code section
135B.1.
"Comprehensive preliminary background check"
means a criminal history check of all states in which the applicant has worked
or resided over the seven-year period immediately prior to submitting an
application for employment or participation in a certified nurse aide training
program that is conducted by an approved third-party vendor.
"Direct services" means services provided
through person-to-person contact. "Direct services" excludes services provided
by individuals such as building contractors, repair workers, or others who are
in a facility for a very limited purpose, are not in the facility on a regular
basis, and who do not provide any treatment or services for residents,
patients, tenants, or participants of the provider.
"Employed in a facility" or
"employment within a facility" means all of the following if
the provider is regulated by the state or receives any federal or state
funding:
1. An employee of a health
care facility licensed under Iowa Code chapter 135C if the employee provides
direct or indirect services to residents;
2. An employee of a home health agency if the
employee provides direct services to consumers;
3. An employee of a hospice if the employee
provides direct services to consumers;
4. A health care employment agency worker as
defined by Iowa Code section
135Q.1.
"Employee" means any individual who is paid
either by the facility or any other entity (i.e., health care employment
agency, private duty, Medicare/Medicaid or independent contractors).
"Evaluation" means review by the department
of human services to determine whether a founded child abuse, dependent adult
abuse or criminal conviction warrants prohibition of the person's employment in
a facility; or whether a founded child abuse, dependent adult abuse or criminal
conviction warrants prohibition of a student's involvement in a clinical
education component of the certified nurse aide training program involving
children or dependent adults.
"Facility," for purposes of this rule, means
all of the following if the provider is regulated by the state or receives any
federal or state funding:
1. A health
care facility licensed under Iowa Code chapter 135C;
2. A home health agency;
3. A hospice.
"Indirect services" means services provided
without person-to-person contact such as those provided by administration,
dietary, laundry, and maintenance.
"Student" means a person applying for,
enrolled in, or returning to a certified nurse aide training
program.
(2)
Explanation of "crime." For purposes of this rule, the term
"crime" does not include offenses under Iowa Code chapter 321 classified as
simple misdemeanor or equivalent simple misdemeanor offenses from another
jurisdiction.
(3)
Requirements for employer prior to employing an individual.
Prior to employment of a person in a facility, the facility shall complete the
background check requirements set forth below.
a.
Informing the prospective
employee. A facility shall ask each person seeking employment by the
facility, "Do you have a record of founded child or dependent adult abuse or
have you ever been convicted of a crime other than a simple misdemeanor offense
relating to motor vehicles and laws of the road under Iowa Code chapter 321 or
equivalent provisions, in this state or any other state?" In addition, the
person shall be informed that a background check will be conducted. The person
shall indicate, by signature, that the person has been informed that the
background check will be conducted. (I, II, III)
b.
Conducting a background
check. The facility shall either request that the department of public
safety perform a criminal history check and that the department of human
services perform child and dependent adult abuse record checks of the person in
this state, or access the single contact repository (SING) to perform the
required background check. If the SING is used, the facility shall submit the
person's prior name(s), if applicable, with the background check request. (I,
II, III)
c.
If a person
being considered for employment has been convicted of a crime. If a
person being considered for employment in a facility has been convicted of a
crime under a law of any state, the facility shall request that the department
of human services perform an evaluation to determine whether the crime warrants
prohibition of the person's employment in the facility. (I, II, III)
d.
If a person being considered for
employment has a record of founded child or dependent adult abuse. If
a person being considered for employment in a facility has a record of founded
child or dependent adult abuse under a law of any state, the facility shall
request that the department of human services perform an evaluation to
determine whether the founded child or dependent adult abuse warrants
prohibition of the person's employment in the facility. (I, II, III)
e.
Employment pending
evaluation. The facility may provisionally employ a person prior to
completion of the required record check and evaluation by the department of
human services, as applicable, subject to all of the following:
(1) The facility shall have accessed SING to
perform the required record check and be awaiting results from SING or awaiting
evaluation by the department of human services, as applicable;
(2) If applicable, the facility shall request
an evaluation by the department of human services in accordance with paragraph
50.9(3)"c" or "d" within 30 days of receipt
of the SING record check results;
(3) The facility shall have utilized an
approved third-party vendor to perform a comprehensive preliminary background
check;
(4) If the comprehensive
preliminary background check determines that the person being considered for
employment has been convicted of a crime, the crime does not constitute a
felony as defined in Iowa Code section
701.7 and is not a crime
specified pursuant to Iowa Code chapter 708, 708A, 709, 709A, 710, 710A, 711,
or 712 or pursuant to Iowa Code section
726.3,
726.7, or
726.8;
(5) The comprehensive preliminary background
check shall have determined that the person being considered for employment
does not have a record of founded child abuse or dependent adult abuse, or, if
the person being considered for employment does have a record of founded child
abuse or dependent adult abuse, subrule 50.9(8) is applicable; and
(6) The provisional employment may continue
until such time as the required record check through SING and evaluation by the
department of human services, as applicable, are completed. (I, II,
III)
(4)
Validity of background check results. The results of a
background check conducted pursuant to this rule shall be valid for a period of
30 calendar days from the date the results of the background check are received
by the facility. (I, II, III)
(5)
Employment prohibition. Except as provided in paragraph
50.9(3)"e," a person who has committed a crime or has a record
of founded child or dependent adult abuse shall not be employed in a facility
unless an evaluation has been performed by the department of human services.
(I, II, III)
(6)
Transfer
of an employee to another facility owned or operated by the same
person. If an employee transfers from one facility to another facility
owned or operated by the same person, without a lapse in employment, the
facility is not required to request additional criminal and child and dependent
adult abuse record checks of that employee. (I, II, III)
(7)
Transfer of ownership of a
facility. If the ownership of a facility is transferred, at the time
of transfer the background check required by this rule shall be performed for
each employee for whom there is no documentation that such background check has
been performed. The facility may continue to employ such employee pending the
performance of the background check and any related evaluation. (I, II,
III)
(8)
Change of
employment-person with criminal or abuse record-exception to record check
evaluation requirements. A person with a criminal or abuse record who
is or was employed by a facility and is hired by another facility shall be
subject to the background check.
a. A
reevaluation of the latest record check is not required, and the person may
commence employment with the other facility if the following requirements are
met:
(1) The department of human services
previously performed an evaluation concerning the person's criminal or abuse
record and concluded the record did not warrant prohibition of the person's
employment;
(2) The latest
background check does not indicate a crime was committed or founded abuse
record was entered subsequent to the previous evaluation;
(3) The position with the subsequent employer
is substantially the same or has the same job responsibilities as the position
for which the previous evaluation was performed;
(4) Any restrictions placed on the person's
employment in the previous evaluation by the department of human services and
still applicable shall remain applicable in the person's subsequent employment;
and
(5) The person subject to the
background check has maintained a copy of the previous evaluation and provided
it to the subsequent employer, or the previous employer provides the previous
evaluation from the person's personnel file pursuant to the person's
authorization. If a physical copy of the previous evaluation is not provided to
the subsequent employer, a current record check evaluation shall be performed.
(I, II, III)
b. For
purposes of this subrule, a position is "substantially the same or has the same
job responsibilities" if the position requires the same certification,
licensure, or advanced training. For example, a licensed nurse has
substantially the same or the same job responsibilities as a director of
nursing; a certified nurse aide does not have substantially the same or the
same job responsibilities as a licensed nurse.
c. The subsequent employer must maintain the
previous evaluation in the employee's personnel file for verification of the
exception to the requirement for a record check evaluation. (I, II,
III)
d. The subsequent employer may
request a reevaluation of the background check and may employ the person while
the reevaluation is being performed, even though an exemption under paragraph
50.9(8)"a" may be authorized.
(9)
Employee notification of criminal
conviction or founded abuse after employment. If a person employed by
a facility employer that is subject to this rule is convicted of a crime or has
a record of founded child or dependent adult abuse entered in the abuse
registry after the person's employment application date, the person shall
inform the employer of such information within 48 hours of the criminal
conviction or entry of the record of founded child or dependent adult abuse.
a. The employer shall act to verify the
information within seven calendar days of notification. "Verify," for purposes
of this subrule, means to access the single contact repository (SING) to
perform a background check, to request a criminal background check from the
department of public safety, to request an abuse record check from the
department of human services, to conduct an online search through the Iowa
Courts Online website, or to contact the county clerk of court office and
obtain a copy of relevant court documents.
b. If the information is verified, the
facility shall follow the requirements of paragraphs
50.9(3)"c" and "d." (I, II, III)
c. The employer may continue to employ the
person pending the performance of an evaluation by the department of human
services.
d. A person who is
required by this subrule to inform the person's employer of a conviction or
entry of an abuse record and fails to do so within the required period commits
a serious misdemeanor under Iowa Code section
135C.33.
e. The employer may notify the county
attorney for the county where the employer is located of any violation or
failure by an employee to notify the employer of a criminal conviction or entry
of an abuse record within the period required under this
subrule.
(10)
Facility receipt of credible information that an employee has been
convicted of a crime or has a record of founded abuse. If the facility
receives credible information, as determined by the facility, from someone
other than the employee, that the employee has been convicted of a crime or a
record of founded child or dependent adult abuse has been entered in the abuse
registry after employment, and the employee has not informed the employer of
the information within the time required by subrule 50.9(9), the facility shall
take the following actions:
a. The facility
shall act to verify credible information within seven calendar days of receipt.
"Verify," for purposes of this subrule, means to access the single contact
repository (SING) to perform a background check, to request a criminal
background check from the department of public safety, to request an abuse
record check from the department of human services, to conduct an online search
through the Iowa Courts Online website, or to contact the county clerk of court
office and obtain a copy of relevant court documents.
b. If the information is verified, the
facility shall follow the requirements of paragraphs
50.9(3)"c" and "d." (I, II,
III)
(11)
Proof
of background checks for health care employment agencies and
contractors. Proof of background checks may be kept in the files
maintained by health care employment agencies and contractors. Health care
employment agencies and contractors shall provide a copy of the result of the
background checks to the facility or department upon request. (I, II,
III)
(12)
Certified nurse
aide training program students. Prior to a student's beginning or
returning to a certified nurse aide training program, the program shall either
request that the department of public safety perform a criminal history check
and that the department of human services perform child and dependent adult
abuse record checks of the person in this state, or access the SING to perform
the required background check.
a.
Prohibition of involvement in clinical education. Except as
provided in paragraph 50.9(1)"b," if a student has a criminal
record or a record of founded child or dependent adult abuse, the student shall
not be involved in a clinical education component of the certified nurse aide
training program involving children or dependent adults unless an evaluation
has been performed by the department of human services. The evaluation shall be
performed upon request of the certified nurse aide training program.
b.
Involvement in clinical education
component pending evaluation. The training program may provisionally
allow the student's participation in the clinical education component of the
certified nurse aide training program pending completion of the required record
check and evaluation by the department of human services, as applicable,
subject to all of the following:
(1) The
training program shall have accessed SING to perform the required record check
and be awaiting results from SING or awaiting evaluation by the department of
human services, as applicable;
(2)
If applicable, the training program shall request an evaluation by the
department of human services in accordance with paragraph
50.9(12)"a" within 30 days of receipt of the SING record check
results;
(3) The training program
shall have utilized an approved third-party vendor to perform a comprehensive
preliminary background check;
(4)
If the comprehensive preliminary background check determines that the student
being considered for participation has been convicted of a crime, the crime
does not constitute a felony as defined in Iowa Code section
701.7 and is not a crime
specified pursuant to Iowa Code chapter 708, 708A, 709, 709A, 710, 710A, 711,
or 712 or pursuant to Iowa Code section
726.3,
726.7, or 726.8;
(5) The comprehensive preliminary background
check shall have determined that the student does not have a record of founded
child abuse or dependent adult abuse, or, if the student does have a record of
founded child abuse or dependent adult abuse, subrule 50.9(8) is applicable;
and
(6) The provisional
participation may continue until such time as the required record check through
SING and evaluation by the department of human services, as applicable, are
completed.
c.
Student notification of criminal conviction or founded abuse after
performance of record checks and evaluation. If a student is convicted
of a crime or has a record of founded child or dependent adult abuse entered in
the abuse registry after the record checks and any evaluation have been
performed, the student shall inform the certified nurse aide training program
of such information within 48 hours of the criminal conviction or entry of the
record of founded child or dependent adult abuse.
(1) The program shall act to verify the
information within seven calendar days of notification. "Verify," for purposes
of this paragraph, means to access the single contact repository (SING) to
perform a background check, to request a criminal background check from the
department of public safety, to request an abuse record check from the
department of human services, to conduct an online search through the Iowa
Courts Online website, or to contact the county clerk of court office and
obtain a copy of relevant court documents. If the information is verified, the
program shall follow the requirements of paragraph 50.9(12)"a"
to determine whether or not the student's involvement in a clinical education
component may continue.
(2) The
program may allow the student involvement to continue pending the performance
of an evaluation by the department of human services.
(3) A student who is required to inform the
program of a conviction or entry of an abuse record and fails to do so within
the required period commits a serious misdemeanor under Iowa Code section
135C.33.
(4) The program may notify the county
attorney for the county where the program is located of any violation or
failure by a student to notify the program of a criminal conviction or entry of
an abuse record within the period required by this
paragraph.
d.
Program receipt of credible information that a student has been
convicted of a crime or has a record of founded abuse. If a program
receives credible information, as determined by the program, that a student has
been convicted of a crime or a record of founded child or dependent adult abuse
has been entered in the abuse registry after the record checks and any
evaluation have been performed, from a person other than the student, and the
student has not informed the program of such information within 48 hours, the
program shall act to verify the credible information within seven calendar days
of receipt of the credible information. "Verify," for purposes of this
paragraph, means to access the single contact repository (SING) to perform a
background check, to request a criminal background check from the department of
public safety, to request an abuse record check from the department of human
services, to conduct an online search through the Iowa Courts Online website,
or to contact the county clerk of court office and obtain a copy of relevant
court documents. If the information is verified, the requirements of paragraph
50.9(12)"a" shall be applied to determine whether or not the
student's involvement in a clinical education component may continue.
e.
Completion of a certified nurse
aide training program conducted by the health care facility. If a
certified nurse aide training program is conducted by the facility and a
student of that program accepts and begins employment with the facility within
30 days of completing the program, the background check of the student
performed prior to beginning the training program shall fulfill the criminal
and abuse background check requirements. The facility shall maintain the proof
required in subrule 50.9(11). (I, II, III)
This rule is intended to implement Iowa Code sections
135C.14 and
135C.33.
