Current through Register Vol. 50, No. 9, September 20, 2024
A. The provisions of this Section shall apply
to the following persons:
1. any person who
owns, operates, or manages a licensed therapeutic group home (TGH);
2. any person who has applied for a license
to operate a therapeutic group home;
3. any person who is employed by, is
contracted by, volunteers at, or interns with a therapeutic group
home;
4. any person who has applied
to be employed or contracted by a therapeutic group home; and
5. any person who has applied to volunteer or
intern with a therapeutic group home.
B. The provisions of this Section shall not
apply to contractors or other individuals providing a service at the
therapeutic group home who are not employees, volunteers, interns, or
contracted members of the staff of the therapeutic group home, including but
not limited to plumbers, landscapers, or visiting resources.
1. For purposes of this Section only, a
volunteer is defined as an individual who offers direct care services to
clients at the TGH on behalf of the provider for the benefit of the provider
willingly and without pay.
2. For
purposes of this Section only, an intern is defined as a student or trainee,
either paid or unpaid, who offers direct care services to clients of the TGH on
behalf of the provider in order to gain work or clinical experience.
C. No person who has been
convicted of, or pled guilty to, or pled nolo contendere to a crime listed in
§6210.C 15, or whose name
is recorded on the State Central Registry within the Department of Children and
Family Services (DCFS) as a perpetrator for a justified finding of abuse or
neglect of a child, or whose name is on any other states child abuse and
neglect registry or repository, may be the owner, operator, manager or
administrator of a TGH, be employed by or contracted with a TGH, or be a
volunteer or intern, paid or unpaid, at a TGH:
1.R.S.
14:28.1, 14:30, 14:30.1, 14:31, 14:32.6,
14:32.7, 14:32.8, 14:32.12, 14:35.2, 14:38.1; 14:40.1, 14:40.3, 14:40.7, 14:41,
14:42, 14:42.1, 14:43, 14:43.1, 14:43.1.1, 14:43.2, 14:43.3, 14:43.4, 14:43.5,
14:44, 14:44.1, 14:44.2, 14:45, 14:46.4, 14:66, 14:74, 14:79.1, 14:80, 14:80.1,
14:81, 14:81.1., 14:81.2, 14:81.3, 14:81.4, 14:81.5, 14:82, 14:82.1, 14:82.2,
14:83, 14:83.1, 14:83.2, 14:83.3, 14:83.4, 14:85, 14:86, 14:89, 14:89.1,
14:89.2, 14:92, 14:93, 14:93.2.1, 14:93.3, 14:93.4, 14:93.5, 14:106, 14:282,
14:283, 14:283.1, 14:284, 14:286, crimes of violence as defined in R.S.
14:2(B), sex offenses as defined in R.S. 15:541, or the attempt or conspiracy
to commit any of these offenses;
2.R.S. 40:966(A), 40:967(A), 40:968(A),
40:969(A), and 40:970(A), or the attempt or conspiracy to commit any of these
offenses;
3. a felony offense
involving theft, pursuant to R.S. 14:67, or theft of assets of an aged person
or person with a disability, pursuant to R.S. 14:67.1, in excess of $500; or, a
felony offense involving theft in any case in which the offender has been
previously convicted of theft, pursuant to either R.S. 14:67 or R.S. 14:67.1,
regardless of the value of the instant theft; or the attempt or conspiracy to
commit any of these offenses;
4.
those of a jurisdiction other than Louisiana which, in the judgment of the
department, would constitute a crime under the provisions cited in this
Section; and
5. those under the
Federal Criminal Code having analogous elements of criminal and moral
turpitude.
D.
Notwithstanding the provisions of
§6210 C, LDH may, at its discretion,
approve a waiver for a person who has a felony conviction for physical assault
or battery as provided for in R.S. 14:34 and 14:37, or for a drug-related
offense provided for in R.S. 40:966(A), 967(A), 968(A), 969(A), or 970(A),
provided that the conviction was at least five years from the date of the
request for waiver.
E. Criminal
Background Checks, Process and Fees
1. The
enhanced criminal background check described in
§6210 is now required for each TGH,
pursuant to the federal Family First Prevention Services Act (Public Law
115-123 enacted February 9, 2018) on child care
institutions and Act 243 of the 2019 Regular Session of the Louisiana
Legislature. This new enhanced criminal background check process encompasses
the state requirements in
R.S.
40:1203.1 et seq. A TGHs compliance with this
new enhanced criminal background check process will be deemed in compliance
with the requirements in
R.S.
40:1203.1.
2. The Department of Health shall request,
consistent with the provisions of
R.S.
15:587.1.2, from the Bureau of Criminal
Identification and Information (the bureau), information concerning whether or
not any of the persons listed in
§6210.A has been arrested
for, convicted of, or pled nolo contendere to any criminal offense.
a. The request shall be on a form prepared by
the bureau and signed by a responsible official of LDH making the
request;
b. The request shall
include a statement signed by the person about whom the request is made which
gives his/her permission for such information to be released; and
c. The person about whom the request is made
shall submit his/her fingerprints in a form acceptable to the bureau.
F. In responding to a
request for information regarding criminal history, the bureau shall make
available a record of all criminal arrests and convictions prior to the date of
request.
G. Upon receiving a
request for information regarding criminal history, pursuant to
R.S.
15:587.1.2 and
R.S.
40:2008.10 (or their successor statutes) and
this licensing rule, the bureau shall survey its criminal history records and
identification files and make a simultaneous request of the Federal Bureau of
Investigation for like information from other jurisdictions. The bureau shall
provide a report to HSS promptly and in writing, but provide only such
information as is necessary to specify whether or not that person has been
arrested for, or convicted of, or pled guilty to, or pled nolo contendere to
any crime or crimes, the crimes for which he has been arrested, or convicted,
or to which he has pled nolo contendere, and the date or dates on which they
occurred.
1. The report provided by the
bureau to HSS shall include arrests, convictions, or other dispositions,
including convictions dismissed pursuant to Code of Criminal Procedure Articles
893 or 894.
2. When an individuals
record contains information which has been expunged, the bureau shall include
in its report to HSS the date of the arrest and a notation that the individuals
record contains information which has been expunged and that HSS may contact
the bureau in order to obtain further information regarding the expunged
information.
H. The LDH,
as recipient of the criminal background report and information from the bureau,
shall maintain the confidentiality of such criminal history information in
accordance with applicable federal and/or state law.
1. The bureaus criminal background report,
and any information contained therein, including expunged information, shall
not be deemed a public record.
2.
The information may be used or admitted as evidence in any court proceeding, or
employment or disciplinary hearing, in which LDH is an authorized
participant.
I. State
Central Registry
1. In addition to the
criminal background checks, HSS requires that the TGH request information from
the DCFS concerning whether or not any of the persons listed in
§6210.A is recorded on
the State Central Registry as a perpetrator for a justified finding of abuse or
neglect of a child.
a. Upon request by HSS,
such information shall be submitted to HSS for its review in
§6210 K
b. If the TGH fails to timely submit this
information to HSS for its review, HSS may seek the information directly from
DCFS and may sanction the TGH for failing to submit such information to
LDH.
J. Other
State Registries of Abuse/Neglect
1. For any
persons listed in
§6210.A who has lived in
any other state within the last five years, HSS shall request information from
the child abuse and neglect registry or repository of each of those states as
to whether the individuals name is recorded on that states registry or
repository.
2. If such information
is not readily available or sent to HSS within 15 days of the request, HSS
shall complete its review under
§6210 K; however, if HSS subsequently
receives information from other states registries or repositories, HSS reserves
the right to re-open its review and send a supplemental determination on the
individual.
K. For the
persons listed in
§6210 A, HSS shall review the criminal
background check, the State Central Registry (for abuse/neglect of a child),
and any other applicable states child abuse and neglect registry or repository,
to determine if the person is eligible to be an owner, operator, manager, or
administrator of a TGH, is eligible to be employed by or contracted with a TGH,
or is eligible to be a volunteer or intern, paid or unpaid, at a TGH.
1. Notification shall be sent to the
TGH.
2. The HSS shall retain such
records and determination within a section of the TGHs licensing file for a
period of five years, and may be shared with state or federal agencies with
authority to access such information; however, such records and determinations
are not public records.
L. The costs of any criminal background
checks and reviews/checks of abuse/neglect registries or repositories required
under statute or this licensing rule shall be the responsibility of the TGH.
1. The HSS may charge a processing fee not to
exceed $15 for the processing of the criminal background check and the review
of abuse/neglect registries or repositories.
2. Additionally, HSS hereby requires that the
TGH pay the charges and fees of the bureau for a state criminal history report,
of the Federal Bureau of Investigation for a federal criminal history report,
of the DCFS State Central Registry, and of any other states registry or
repository of abuse/neglect; such payments shall be made directly to those
bureaus and agencies.
M.
The HSS may request any information necessary from the TGH, from any person
subject to the provisions of this Section, or from any other appropriate agency
to ensure compliance with the requirements of criminal background checks and
abuse/neglect registries or repositories.
N. Existing, Active TGH Licensed Before
October 1, 2019
1. For any existing, operating
TGH licensed as of October 1, 2019, the licensee shall submit to HSS on or
before October 15, 2019, the following:
a. A
list of all owners, operators, managers, administrators, employees,
contractors, volunteers, and interns of the TGH as of October 15, 2019; such
list shall indicate whether any such person has worked in another state within
the last five years, including the states where worked, if applicable;
and
b. Evidence to HSS that none of
these individuals are recorded on the State Central Registry (for abuse/neglect
of a child) via DCFS.
2.
Each such person listed shall:
a. Submit a
signed form or statement by October 15, 2019, giving permission for a criminal
background check to be conducted by the bureau, and for the results/report to
be submitted to HSS, pursuant to statute and this licensing rule; and
b. Submit his/her fingerprints to the bureau
by October 15, 2019;
c. Submit an
attestation to HSS on a form provided by HSS wherein the person attests that
his/her signed form/statement and his/her fingerprints have been so submitted;
this attestation must be received by HSS by October 18, 2019.
3. A person who has timely
submitted his/her signed form/statement and his/her fingerprints to the bureau,
who has timely submitted the attestation in
§6210.N 2, and who is not
recorded on the State Central Registry for abuse/neglect of a child or any
other states abuse/neglect registry or repository, may continue to own,
operate, manager, administer, be employed, be contracted, volunteer, and/or
intern with the TGH until HSS receives and reviews the information or report
from the bureau and receives and reviews any information or report from the
State Central Registry for abuse/neglect of a child or any other states
abuse/neglect registry or repository.
4. If such information reveals that the
person cannot be an owner pursuant to this Section, the department shall notify
the licensed TGH, and the TGH shall immediately remove the person from
ownership or shall immediately surrender its license.
5. If such information reveals that the
person cannot be an operator, manager, administrator, employee, contractor,
volunteer, or intern with the TGH pursuant to this Section, HSS shall notify
the licensed TGH and the TGH shall immediately terminate the person.
6. No new owner may be obtained and no new
operator, administrator, manager, employee, contractor, volunteer, or intern
may be hired after October 15, 2019, until that person has submitted his/her
signed form/statement and his/her fingerprints to the bureau and HSS has:
a. received and reviewed the information or
report from the bureau;
b. received
and reviewed the information or report regarding the State Central Registry for
abuse/neglect of a child or any other states abuse/neglect registry or
repository; and
c. confirmed that
the person can be an owner, operator, administrator, manager, employee,
contractor, volunteer, or intern pursuant to the provisions of this Section or
of the applicable statutes.
O. A TGH licensed after October 1, 2019, or
that has an inactivated license re-activated after October 1, 2019
1. Any TGH licensed after October 1, 2019, or
any inactive TGH that has its license re-activated after October 1, 2019, shall
submit with its licensing application to HSS, a list of all proposed owners,
operators, administrators, managers, employees, contractors, volunteers, and
interns.
2. For the initial
licensing application process of any TGH licensed after October 1, 2019, or for
the reactivation licensing application process of any inactive TGH that has its
license re-activated after October 1, 2019, the HSS processing of the
application shall not begin until such time that all owners have submitted
signed forms/statements and fingerprints to the bureau, and HSS has:
a. received and reviewed the information or
report from the bureau;
b. received
and reviewed the information or report regarding the State Central Registry for
abuse/neglect of a child or any other states abuse/neglect registry or
repository; and
c. confirmed that
the person can be an owner pursuant to the provisions of this Section or of the
applicable statute.
3.
Once HSS has confirmed that each owner is compliant with the provisions of this
Section and is eligible to be an owner of the TGH, then HSS will proceed with
processing the licensing application; however, the on-site licensing survey or
the on-site reactivation survey at the TGH will not be scheduled by HSS, until
such time that all operators, administrators, managers, employees, contractors,
volunteers, and interns listed per
Section
6210.O.1 have
submitted signed forms/statements and fingerprints to the bureau, and HSS has:
a. received and reviewed the information or
report from the bureau;
b. received
and reviewed the information or report regarding the State Central Registry for
abuse/neglect of a child or any other states abuse/neglect registry or
repository; and
c. confirmed that
the person can be an operator, administrator, manager, employee, contractor,
volunteer, or intern pursuant to the provisions of this Section or of the
applicable statute.
4.
No new TGH may be licensed after October 1, 2019, and no inactive TGH may have
its license re-activated after October 1, 2019 until all persons listed in
Section
6210.O.1 have
been determined in compliance with this Section or have been removed from
ownership or employ of the TGH.
5.
At the on-site licensing survey or the on-site reactivation survey, the TGH
shall have sufficient approved staff to admit and treat at least one client
continuously for 24 hours.
a. The TGH shall
have sufficient approved staff to meet the needs of any client admitted to the
TGH.
6. No new owner or
operator may be obtained and no new administrator, manager, employee,
contractor, volunteer, or intern may be hired by the TGH after submitting the
initial license application or reactivation license application, until the TGH
has submitted notice of the new person to HSS, and that person has submitted
his/her signed form/statement and his/her fingerprints to the bureau, and HSS
has:
a. received and reviewed the information
or report from the bureau;
b.
received and reviewed the information or report regarding the State Central
Registry for abuse/neglect of a child or any other states abuse/neglect
registry or repository; and
c.
confirmed that the person can be an owner, operator, administrator, manager,
employee, contractor, volunteer, or intern pursuant to the provisions of this
Section or of the applicable statutes.
P. Subject to
§6210.P 1, LDHs review
and determination regarding criminal background check and abuse/neglect
registry verification(s) for any person subject to the provisions of this
Section, is specific to that licensed TGH only. A separate review and
determination, along with new criminal background check and abuse/neglect
registry verifications, shall be necessary for any person (who is subject to
the provisions of this Section) who is an owner, operator, manager,
administrator, employee, contractor, volunteer, or intern at a separately
licensed TGH.
1. If two or more licensed TGHs
are owned by the same corporate entity and such is noted on the license
application and license, then LDH, in its discretion, may allow its review and
determination regarding criminal background check and abuse/neglect registry
verification for a particular owner, operator, manager, administrator,
employee, contractor, volunteer, or intern who will be at both (or multiple) of
the owned TGHs, to be based on the same criminal background check and
abuse/neglect registry verifications, provided that the background check and
verifications were conducted within the last 90 days.
Q. In addition to other sanctions that may be
imposed on a TGH, LDH may also deny initial licensure, revoke an existing
license, or deny renewal or reactivation of a license of a TGH that violates
the provisions of this Section or of the applicable statutes.
AUTHORITY NOTE:
Promulgated in accordance with
R.S.
36:254 and Act 243 the 2019 Regular Session
of the Louisiana Legislature.
