Current through Register Vol. 46, No. 19, March 20, 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.
"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 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 program for a very limited purpose, who are not in the program 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 program"
or"employment within a program" means all of the following, if
the provider is regulated by the state or receives any federal or state
funding:
1. An employee of an assisted
living program certified under Iowa Code chapter 231C, if the employee provides
direct services to consumers;
2. An
employee of an elder group home certified under Iowa Code chapter 23 IB, if the
employee provides direct services to consumers;
3. An employee of an adult day services
program certified under Iowa Code chapter 231D, if the employee provides direct
services to consumers.
"Employee" means any individual who is paid,
either by the program or any other entity (i.e., temporary 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 the person's being prohibited from
employment in a program.
"Indirect services" means services provided
without person-to-person contact such as those provided by administration,
dietary, laundry, and maintenance.
"Program," 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. An
assisted living program certified under Iowa Code chapter 231C;
2. An elder group home certified under Iowa
Code chapter 23 IB; and
3. An adult
day services program certified under Iowa Code chapter 23 ID.
(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
program, the program shall complete the background check requirements set forth
below.
a.
Informing the prospective
employee. A program shall ask each person seeking employment by the
program, "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?" The person shall also
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.
b.
Conducting a background check. 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 single contact
repository (SING) to perform the required background check. If the SING is
used, the program shall submit the person's maiden name, if applicable, with
the background check request.
c.
If a person considered for employment has been convicted of a
crime. If a person being considered for employment in a program has
been convicted of a crime under a law of any state, the program 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
program.
d.
If a person
considered for employment has a record of founded child abuse or dependent
adult abuse. If a person being considered for employment in a program
has a record of founded child or dependent adult abuse under the law of any
state, the program shall request that the department of human services perform
an evaluation to determine whether the founded child or dependent adult abuse
warrants prohibition of employment in the program.
e.
Employment pending
evaluation. The program 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 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 program shall request
an evaluation by the department of human services in accordance with paragraph
67.19(3)"c " or"d" within 30 days of receipt
of the SING record check results;
(3) The 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 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 67.19(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.
(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 program.
(5)
Employment prohibition.
Except as provided in paragraph 67.19(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 program unless an evaluation has been performed by
the department of human services.
(6)
Transfer of an employee to
another program owned or operated by the same person. If an employee
transfers from one program to another program owned or operated by the same
person, without a lapse in employment, the program is not required to request
additional criminal and child and dependent adult abuse record checks of that
employee.
(7)
Transfer of
ownership of a program. If the ownership of a program 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 program may continue to employ such
employee pending the performance of the background check and any related
evaluation.
(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 certified program and is hired by
another certified program 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
certified program 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 prior 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.
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.
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
67.19(8)"a" may be authorized.
(9)
Employee notification of criminal
convictions or founded abuse after employment. If a person employed by
an 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
program shall follow the requirements of paragraphs
67.19(3)"c" and"d."
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)
Program receipt of
credible information that an employee has been convicted of a crime or founded
for abuse. If the program receives credible information, as determined
by the program, 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 67.19(9), the program shall take the following actions:
a. The program 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 program shall follow the requirements of
paragraphs 67.19(3)"c" and"d"
(11)
Proof of background
checks for temporary employment agencies and contractors. Proof of
background checks may be kept in the files maintained by temporary employment
agencies and contractors. Facilities may require temporary employment agencies
and contractors to provide a copy of the result of the background checks.
Copies of such results shall be made available to the department upon request.
This rule is intended to implement Iowa Code sections 23
IB.2(1), 231C.3(1), 23 ID.2(2), and 135C.33 and 2020 Iowa Acts, Senate File
2299.
