Current through Register Vol. 49, No. 6, March 15, 2024
PURPOSE: This amendment clarifies the application of
the rule and updates the rule to ensure it is consistent with section
630.170,
RSMo, and makes necessary modifications to implement the changes impacting
section
630.170,
RSMo, that were effective January 1, 2017, and adds a definitions
section.
PURPOSE: This rule establishes background screening
requirements for staff and certain volunteers, students, and members of a
provider's household in any public or private facilities, community residential
facilities, day programs, or specialized service operated, licensed, certified,
accredited, in possession of deemed status, or funded by the Department of
Mental Health.
(1)
Definitions. The following definitions apply to terms used in this rule:
(A) DMH-the Missouri Department of Mental
Health;
(B) Members of the
provider's household-persons age eighteen (18) or older whose permanent
residence is the provider's household, or persons who visit the home on a
frequent basis, or persons who spend the night in the home on a frequent basis
such that direct, unsupervised contact with individuals served is likely to
occur. For purposes of this rule, "frequent" means six (6) or more times over a
rolling twelve- (12-) month period;
(C) Natural supports-supports provided by a
person of the individual's choice that assist him or her in achieving his or
her goals and facilitate his or her integration into the community. Natural
supports are provided by persons who are not paid staff of an agency but may be
initiated, planned, and facilitated in partnership with an agency;
(D) Staff (staff member, employee,
personnel)-a paid employee or contractor providing services or supports on
behalf of the agency on a full- or part-time basis who has contact with
individuals served by the agency;
(E) Student (student worker, student intern,
practicum student)-a person who is not on the agency or provider payroll, but
as part of his or her education or training has direct contact with individuals
served;
(F) Visitor-a family
member, friend, clergy, or other person invited by the individual served;
and
(G) Volunteer-an unpaid person
formally recognized by the agency to provide direct services or supports to
individuals it serves.
(2) For the purposes of this rule, public or
private facilities, community residential facilities, day programs, and
specialized services (agencies) are divided into two (2) categories, as
follows:
(A) Category I. Agencies that are
certified or licensed exclusively by the Department of Mental Health (DMH) or,
although not certified or licensed, are funded by DMH. Specifically this
category includes:
1. All agencies certified
by DMH;
2. Agencies that have
contractual arrangements with DMH but are exempt from DMH's licensing and
certification process due to accreditation or other reason; and
3. Agencies that are licensed by DMH and do
not have a license from another state agency; and
(B) Category II. Agencies that have a license
or certificate from another state agency. Specifically, this category includes
agencies licensed by the Children's Division or the Department of Health and
Senior Services; also included are intermediate care facilities/for individuals
with intellectual or developmental disabilities (ICF/IDD). Agencies included in
Category II are subject to rules regarding criminal record review as
promulgated by the state agency that licenses or certifies them and are not
subject to sections (4) through (7) of this rule, however, all other sections
of this rule apply.
(3)
This rule applies to-
(A) Paid and unpaid
staff and volunteers of the agency, including student workers; and
(B) For residential services, members of the
provider's household, except children under the age of eighteen (18), who have
contact with individuals served.
(4) Each agency defined under Category I
above shall make the following inquiries for all new staff, volunteers,
students, and members of the provider's household, where applicable:
(A) An inquiry with the Department of Health
and Senior Services to determine whether the person having contact with
individuals served is listed on the employee disqualification list of the
Department of Social Services or the Department of Health and Senior
Services;
(B) An inquiry with DMH
to determine whether the person is on the DMH disqualification registry;
and
(C) A criminal background check
with the Missouri State Highway Patrol. The request for the background check
does not require fingerprints and shall be in accordance with requirements of
the Missouri State Highway Patrol under Chapter 43, RSMo. The agency may use a
private investigatory agency to conduct this review.
(5) The criminal background check and
inquiries required under section (4) of this rule shall be initiated within two
(2) working days of hire for staff who will have contact with individuals
served. The criminal background check and inquiries required under section (4)
of this rule shall be initiated prior to a volunteer, student, or members of
the provider's household having contact with individuals served, where
applicable. A criminal background check is not required for visitors, persons
providing natural supports, students, or other persons who are job shadowing
and do not have unsupervised contact with individuals served, or volunteers who
do not have unsupervised contact with individuals served.
(6) Each agency included under Category I
above shall require all new applicants for employment, volunteer positions,
students, and members of the provider's household, where applicable, who will
have contact with individuals served to-
(A)
Sign a consent form authorizing a criminal record review with the highway
patrol, either directly through the patrol or through a private investigatory
agency;
(B) Disclose his/her
criminal history, including any conviction or a plea of guilty to a misdemeanor
or felony charge and any suspended imposition of sentence, any suspended
execution of sentence or any period of probation or parole; and
(C) Disclose if s/he is listed on the
employee disqualification list of the Department of Social Services or the
Department of Health and Senior Services, or the DMH disqualification
registry.
(7) Each agency
shall develop policies and procedures regarding the implementation of this rule
and the disposition of information provided by the criminal record review. At a
minimum the policies and procedures shall include:
(A) Procedures for obtaining the criminal
record review;
(B) Procedures for
confidentiality of records; and
(C)
Guidelines for evaluating information received through the criminal record
review which establish a clear boundary between convictions that by statute
exclude an individual from service, and convictions that would not
automatically exclude an individual.
(8) Offenses under section
630.170,
RSMo, that disqualify a person from service are as follows:
(A) A person is disqualified from holding any
position in the agency if that person-
1. Has
been found guilty of or pleaded guilty to or nolo contendere, including having
received a suspended imposition of sentence or suspended execution of sentence
to any of the following offenses:
A. Abuse or
neglect of an individual served as defined in section
630.155,
RSMo;
B. Furnishing unfit food to
an individual served as defined in section
630.160,
RSMo; or
C. Vulnerable person
abuse, as described in sections
565.210 to
565.214, RSMo, as
those sections existed prior to January 1, 2017.
2. Is listed on the DMH disqualification
registry; or
3. Is listed on the
employee disqualification list of the Department of Health and Senior Services
or Department of Social Services.
(B) A person who has been found guilty of or
pleaded guilty to or nolo contendere, including having received a suspended
imposition of sentence or suspended execution of sentence, to any of the
offenses specified in section 630.170.2, RSMo, is disqualified from holding any
position having contact with individuals served in the agency. For reference
purposes, DMH maintains an updated list of disqualifying crimes under section
630.170,
RSMo, at
http://dmh.mo.gov/about/employeed-isqualification/.
1. A person who has been found guilty of or
pleaded guilty or nolo contendere, including having received a suspended
imposition of sentence or suspended execution of sentence, to a violation of
section
577.010,
RSMo or section
577.012,
RSMo and who is alleged and found by the court to be an aggravated or chronic
offender under section
577.023,
RSMo, is disqualified from holding any position having contact with individuals
served in the agency if the person is hired by the agency after January 1,
2014.
(9) Any
person disqualified from employment under this rule may request an exception
from the DMH Exceptions Committee in accordance with
9 CSR
10-5.210 Exceptions Committee Procedures.
(A) The right to request an exception under
this subsection does not apply to persons who are disqualified due to being
listed on the employee disqualification registry of the Department of Social
Services or Department of Health and Senior Services, nor does it apply under
section 630.170.4, RSMo, to persons who are disqualified due to any offenses
pursuant to the provisions of Chapter 566 or sections
565.020,
565.021,
568.020,
568.060, 569.025, as that section existed prior to January 1, 2017, or 574.080,
RSMo. For reference purposes, DMH maintains an updated list of disqualifying
crimes not eligible for exception under section 630.170.4, RSMo, at
http://dmh.mo.gov/about/employeedisqualification/.
(10) For the purposes of this
rule, a verdict of not guilty by reason of insanity (NGRI) is not per se
disqualifying. A suspended imposition of sentence (SIS) or suspended execution
of sentence (SES) is disqualifying.
(11) Any person who has committed a
disqualifying crime as identified in section (8) of this rule, unless the
person has received an exception from DMH, is not eligible for hire by an
agency. However, the agency retains the discretionary authority to deny
employment to persons who-
(A) Have committed
crimes not identified as disqualifying;
(B) Have received an exception from the
Exceptions Committee; or
(C) Have
received a verdict of Not Guilty by Reason of Insanity.
*Original authority: 630.170, RSMo 1980, amended 1982,
1996, 1998, 2001, 2003; 630.655, RSMo 1980; 630.710, RSMo 1980, amended 1996,
1998, and 660.317, RSMo 1996, amended 1997, 1998, 2003,
2003.
