Current through Register Vol. 49, No. 18, September 16, 2024
PURPOSE: This rule is being promulgated to establish
the procedure by which persons with criminal convictions may seek a waiver
allowing them to be employed by health care and mental health providers despite
the hiring restrictions found in section
660.317,
RSMo. The waivers are to be for "good cause" as defined by that statute. This
rule sets forth both the procedure for seeking waivers and the facts and
circumstances to be considered by the Department of Social Services in
determining "good cause."
(1)
Definitions.
(A) Applicant means a person who
has been or would be rejected for employment by a provider due to the hiring
restrictions found in section
660.317,
RSMo.
(B) Department means the
Department of Health and Senior Services.
(C) Determination means the decision issued
by the director of the Department of Health and Senior Services or the
director's designee based on the factual, procedural or causal issues of the
request for waiver.
(D) Director
means the director of the Department of Health and Senior Services.
(E) Good Cause Waiver means a finding that it
is reasonable to believe that the restrictions imposed by section
660.317,
RSMo, on the employment of an applicant may be waived after an examination of
the applicant's prior work history and other relevant factors is conducted and
demonstrates that such applicant does not present a risk to the health or
safety of residents, patients or clients if employed by a provider.
(F) Provider means any person, corporation or
association who-
1. Is licensed as an operator
pursuant to Chapter 198, RSMo;
2.
Provides in-home services under contract with the Department of Health and
Senior Services;
3. Employs nurses
or nursing assistants for temporary or intermittent placement in health care
facilities;
4. Is an entity
licensed pursuant to Chapter 197, RSMo;
5. Is a public or private facility, day
program, residential facility or specialized service operated, funded or
licensed by the Department of Mental Health; or
6. Is a licensed adult day care provider. (G)
Reference means a written statement of character, qualification or ability
issued on behalf of the applicant by a person who is not related to or residing
with the applicant requesting a good cause waiver.
(H) Sponsor means the current or potential
employer of the applicant, or a training program, agency or school in which the
applicant is or was a student enrolled for the purpose of earning a
professional license, certification or otherwise becoming qualified to perform
the duties of an occupation.
(2) Any person who is not eligible for
employment by a provider due to the hiring restrictions found in section
660.317,
RSMo, may apply to the director for a good cause waiver. If the director, or
the director's designee, determines that the applicant has demonstrated good
cause, such restrictions prohibiting such persons from being hired by a
provider shall be waived and such persons may be so employed unless rejected
for employment on other grounds. Hiring restrictions based on the Department of
Health and Senior Services' employee disqualification list established pursuant
to section
660.315,
RSMo, are not subject to a waiver.
(3) The director, or the director's designee,
shall accept an application for a good cause waiver only if the application-
(A) Is submitted in writing by the applicant
on the form provided by the department;
(B) Is legible;
(C) Is signed by the applicant;
(D) Includes an indication of the type of
waiver that is being requested;
(E)
Includes a complete history of residency since the earliest disqualifying
offense or incident;
(F) Includes a
complete employment history since the age of eighteen (18) years;
(G) Includes an attached explanation written
by the applicant as to why the applicant believes he or she no longer poses a
risk to the health, safety or welfare of residents, patients or
clients;
(H) Includes an attached
description written by the applicant of the events that resulted in each
disqualifying offense or incident;
(I) Includes attached documentation on the
applicant's professional, vocational or occupational licensure, certification
or registration history and current status, if any, in this state and any other
state;
(J) Includes at least one
(1) reference letter from a sponsor. If the applicant is not able to obtain a
sponsor, the applicant shall so state, shall identify those potential sponsors
who have been approached by the applicant, and shall submit three (3) reference
letters from individuals knowledgeable of the applicant's character or work
history who are not related to or residing with the applicant;
(K) Includes a criminal history record from
the Missouri State Highway Patrol if requesting a waiver of disqualifying
criminal offenses;
(L) Includes a
certified court document for each disqualifying criminal offense. If such
document is not obtainable, a written and signed statement from the court
indicating that no such record exists must be submitted;
(M) Includes certified investigative reports
from the Department of Social Services if requesting a waiver of child abuse or
neglect findings or a waiver of foster parent license denial, revocation, or
involuntary suspension;
(N)
Includes certified investigative reports or other documentation of the
incident(s) which resulted in the applicant's inclusion on all other lists in
the Family Care Safety Registry for which waiver is requested; and
(O) If in addition to the criminal offense(s)
for which the applicant is requesting a waiver the applicant has any pending
felony or misdemeanor charges, includes a statement explaining the
circumstances and certified copies of the charging documents for all pending
criminal charges; and, in the case of an applicant seeking a position with an
in-home services provider agency or home health agency, if in addition to the
circumstances related to the listing on any of the background checklists of the
Family Care Safety Registry for which the applicant is requesting a waiver the
applicant has any pending circumstances which if established would lead to an
additional listing on any of the background checklists of the Family Care
Safety Registry, includes a statement explaining the circumstances and
certified copies of documents relating to those circumstances.
(4) The director, or the
director's designee, will not consider any application for a good cause waiver
unless it is fully completed, signed by the applicant, and contains all
required attachments.
(5) Each
completed application will be reviewed by a good cause waiver committee of two
(2) or more employees of the department. The director shall determine the size
of the committee and shall, from time to time, appoint members to serve on the
committee.
(A) If the applicant seeks a good
cause waiver of placement on the disqualification list maintained by the
Department of Mental Health, the director shall appoint an employee of the
Department of Mental Health recommended by the director of the Department of
Mental Health to serve on the good cause waiver committee.
(B) A member of the good cause waiver
committee shall recuse himself or herself in a good cause waiver review in
which the member's impartiality might reasonably be questioned, including but
not limited to instances where the committee member has a personal bias or
prejudice concerning the applicant, or personal knowledge of evidentiary facts
concerning the application for good cause waiver.
(6) The department may, at any time during
the application process or review thereof, request additional information from
the applicant. If the applicant fails to supply any requested additional
information within thirty (30) calendar days of the date of the request, unless
the applicant requests and the department grants an extension, the department
will consider the application for good cause waiver to be withdrawn by the
applicant.
(7) The department may
request the applicant, prior to the completion of the review, to appear in
person to answer questions about his or her application. If the applicant is
requested to appear in person, the department, in its sole discretion, shall
determine the location for the appearance and may conduct any such proceedings
using electronic means, including but not limited to telephonic or video
conferencing. The department shall review and may investigate the information
contained in each application for completeness, accuracy and truthfulness. The
burden of proof shall be upon the applicant to demonstrate that he or she no
longer poses a risk to the health, safety or welfare of residents, patients or
clients. The following factors shall be considered in determining whether a
good cause waiver should be granted:
(A) The
applicant's age at the time the crime was committed or at the time the incident
occurred that resulted in the applicant being listed on the background
checklists in the Family Care Safety Registry;
(B) The circumstances surrounding the crime
or surrounding the incident that resulted in the applicant being listed on the
background checklists in the Family Care Safety Registry;
(C) The length of time since the conviction
or since the occurrence of the incident that resulted in the applicant being
listed on the background checklists in the Family Care Safety
Registry;
(D) The length of time
since the applicant completed his or her sentence for the disqualifying
conviction(s), whether or not the applicant was confined, conditionally
released, on parole or probation;
(E) The applicant's entire criminal history
and entire history of all incidents that resulted in the applicant being listed
on the background checklists in the Family Care Safety Registry, including
whether that history shows a repetitive pattern of offenses or
incidents;
(F) The applicant's
prior work history;
(G) Whether the
applicant had been employed in good standing by a provider but subsequently
became ineligible for employment due to the hiring restrictions in section
660.317,
RSMo;
(H) Whether the applicant has
been convicted or found guilty of, or pled guilty or nolo
contendere to any offense displaying extreme brutality or disregard
for human welfare or safety;
(I)
Whether the applicant has omitted a material fact or misrepresented a material
fact pertaining to his or her criminal or employment history or to his or her
history of incidents that resulted in his or her being listed on the background
checklists in the Family Care Safety Registry;
(J) Whether the applicant has ever been
listed on the Employee Disqualification List maintained by the department as
provided in section
660.315,
RSMo;
(K) Whether the applicant's
criminal offenses were committed, or the incidents that resulted in the
applicant being listed on the background checklists in the Family Care Safety
Registry occurred, during the time he or she was acting as a provider or as an
employee for a provider;
(L)
Whether the applicant has, while disqualified from employment by a provider,
obtained employment by fraud, deceit, deception or misrepresentation, including
misrepresentation of his or her identity;
(M) Whether the applicant has ever had a
professional or occupational license, certification, or registration revoked,
suspended, or otherwise disciplined;
(N) Any other information relevant to the
applicant's employment background or past actions indicating whether he or she
would pose a risk to the health, safety or welfare of residents, patients or
clients; and
(O) Whether the
applicant has supplied all information requested by the department.
(8) If, at the time of an
application for a waiver, or during the waiver consideration process, the
applicant has been charged or indicted for, but not convicted of, any of the
crimes covered under the provisions of section
660.317,
RSMo, the division will hold the request for waiver in abeyance while such
charges are pending or until a court of competent jurisdiction enters a
judgment or order disposing of the matter.
(9) Each applicant who submits a waiver
application meeting the requirements of section (3) of this rule shall be
notified in writing by the director, or the director's designee, as to whether
his or her application has resulted in a determination of good cause or no good
cause. Such notification shall be effective if sent to the applicant's address
given on the application.
(10) Any
good cause waiver granted to an applicant applies only to:
(A) The specific disqualifying conviction(s),
finding(s) of guilt, plea(s) of guilty or nolo contendere, as
contained in the certifying copies of the court documents which are required in
the application; and/or
(B) The
incident(s) that resulted in the applicant being listed on the background
checklists in the Family Care Safety Registry, as contained in the
investigative reports or other supporting documentation required in the
application or subsequently requested by the department.
(11) Any good cause waiver granted to an
applicant applies only to those disqualifying criminal convictions on incidents
that resulted in the applicant being listed on the background checklists in the
Family Care Safety Registry, as covered under the provisions of section
660.317,
RSMo, and shall not apply to any other hiring restriction or exclusion imposed
by any other federal or state laws or regulations.
(12) The director, or the director's
designee, may withdraw a good cause waiver if it receives information or finds
that-
(A) The applicant has omitted a
material fact or misrepresented a material fact in seeking a good cause
waiver;
(B) The applicant has been
subsequently convicted or found guilty of, or pled guilty or nolo
contendere to any class A or B felony violation of Chapter 565, 566,
or 569, RSMo, or any violation of subsection 3 of section
198.070,
RSMo, or section
568.020, RSMo,
in this state or any other state;
(C) Such applicant is a prospective or
current employee of an in-home services provider or home health agency and has
been subsequently involved in an incident that results in the applicant being
listed on any of the background checklists in the Family Care Safety
Registry;
(D) The applicant has
omitted, misrepresented or failed to disclose or provide any of the information
required by section
660.317,
RSMo, or the provisions of this rule; or
(E) There has been a material change in the
circumstances upon which the good cause waiver was granted.
(13) If the good cause waiver is
withdrawn by the department, the notice of such withdrawal shall be mailed by
the department to the applicant's last known address, with a copy of the notice
sent to the applicant's last known employer, if any.
(14) No applicant may be employed in a direct
care or direct service position with a provider during the pendency of a
request for waiver unless the applicant has been continuously employed by that
provider prior to August 28, 2003. If an applicant is employed on or after
August 28, 2003, he or she may be employed following submission of a completed
waiver application on a conditional basis to provide in-home services or home
health services to any in-home services client or home health patient during
the pendency of that waiver application if:
(A) The disqualifying crime is not one that
would preclude employment pursuant to subsection 6 of section
660.317,
RSMo; and
(B) The applicant is not
listed on the Department of Health and Senior Services' employee
disqualification list established pursuant to section
660.315,
RSMo.
(15) If a waiver
is denied to an applicant employed on or after August 28, 2003, on a
conditional basis, the conditional employment shall immediately
terminate.
(16) Applicants who have
been denied a good cause waiver, or who have had their good cause waivers
withdrawn by the department, may reapply one (1) time every twelve (12) months,
or whenever the circumstances related to the disqualifying conviction(s) have
changed.
(17) Each provider shall
be responsible for-
(A) Requesting criminal
background checks on all prospective employees, regardless of waiver status, in
accordance with the provisions of sections
660.317
and
43.540,
RSMo; and
(B) Contacting the
department to confirm the validity of a prospective employee's good cause
waiver prior to hiring the prospective employee if the prospective employee
reveals the existence of a good cause waiver or reveals the existence of an
otherwise disqualifying circumstance.
(18) Each in-home services provider or home
health provider shall also be responsible for-
(A) Requesting Family Care Safety Registry
background screenings on all prospective employees, regardless of waiver
status, in accordance with the provisions of section 660.317.7, RSMo;
and
(B) Contacting the department
to confirm the validity of a prospective employee's good cause waiver prior to
hiring the prospective employee if the prospective employee reveals the
existence of a good cause waiver or reveals the existence of an otherwise
disqualifying circumstance.
(19) All applications for good cause waivers
and related documents shall become permanent records maintained by the
department.
*Original authority: 660.017, RSMo 1993, amended 1995;
660.050, RSMo 1984, amended 1988, 1992, 1993, 1994, 1995, 2001; and 660.317,
RSMo 1996, amended 1997, 1998, 2002,
2003.
