DDS has amended Policy 1087 and has developed new Procedures for
Conducting Criminal Record Checks on Employees of Service Providers for
Individuals with Developmental Disabilities. These documents are now available
for review and public comment. Written comments may be submitted to DDS for
thirty days.
Policy 1087 (item 3. e). and the Procedures reflect a change in how
national criminal record checks must be performed. Act 1548 [
20-48-702(b)
(1) ] allowed for the completion of
only a national record check (no Arkansas check) when
an employee or applicant (a) had not had been a resident of the state for five
years or (b) had not worked for a DDS provider for
sixty days. If a provider could verify the required residency or employment, an
Arkansas check only would be performed [
20-48-702(b)
(2) ]. Due to a conflict with FBI policy,
however, DDS has determined, and DHS Office of Chief Counsel has agreed, that
providers must use another procedure for national
record checks.
The Bureau (Identification Bureau of the Arkansas State Police) has
informed DDS that the Bureau is not allowed to request a check of Federal
Bureau of Investigation (FBI) files for a national criminal record check (CRC)
unless the Bureau has already performed a state CRC.
DDS sought verification of this issue from the Criminal Justice Information
System (CJIS), a division of the FBI, and received this response:
"...fingerprints must be initially submitted to the state
identification bureau for a check of state records before forwarding to the FBI
for a national criminal history check."
An applicant or employee who requires a national criminal record check
must therefore request and pay for both a national CRC
AND a state CRC. An applicant or employee who meets
either the five-year residency or 60-day employment qualification may still
request a state-only CRC and should not submit a fingerprint card.
Comments on these procedures should be sent to: Shelley Lee, DDS, PO
Box 1437 Slot N501, Little Rock, AR 72203. All other program inquiries should
be directed to: Christopher Bliss, DDS Licensure, Slot N203, phone (501)
682-8696.
Subject of Policy
Criminal Records Checks
1.
Purpose. The purpose of this policy is to delineate
the requirements, allowances, exclusions, and general implementation of
criminal record checks, in accordance with Act 1548 of 2001, hereafter referred
to as "the Act".
2.
Scope. This policy is applicable to all providers
licensed and certified by DDS to provide services for persons with
developmental disabilities, all employees of those providers, and all
applicants for employment by those providers.
3.
Requirements under the
Criminal Record Checks policy:
(a) Requirement for completion and
notarization of a criminal record check form (which complies with the Act) and
completion of a fingerprint card (when required) by any person to whom the
provider intends to offer employment on or after August 13, 2001
(b) Requirement for conveyance of forms and
fees within five (5) days to the Arkansas State Police Bureau of Identification
for any person to whom a service provider intends to offer employment
(c) Requirement for initiation of Central
Registry checks by a service provider prior to an offer of employment
(d) Requirement for temporary
disqualification for employment by a service provider upon discovery of a
criminal record, pending a determination by the Division of Developmental
Disabilities Services (DDS), based on the provisions of the Act
(e) Requirement for both an Arkansas and a
national criminal record check unless the individual meets specific residency
or employment qualifications
(f)
Requirement for evidence that criminal record checks were performed on agency,
temporary, and contract staff
(g)
Requirement for notification by service providers to applicants and current
employees that employment is contingent upon results of criminal record
checks
(h) Requirement for a
determination by DDS of an individual's employment qualification or
disqualification, based on the provisions of the Act, and for forwarding of
this determination to the service provider
(i) Requirement for the denial or termination
of employment by a service provider to any person determined by DDS to be
disqualified for employment, based on the provisions of the Act
(j) Requirement for the maintenance of
evidence of criminal record checks on applicants and current employees and
copies of determinations by DDS
(k)
Requirement that DDS issue a determination, based on the provisions of the Act,
that a person is disqualified from employment with a service provider if that
person has pled guilty or nolo contendere to or has been found guilty of
certain offenses
(l) Requirement
that service providers not knowingly employ a person who has pled guilty or
nolo contendere to or has been found guilty of certain offenses
(m) Requirement that provisions of the Act
not be waived
(n) Requirement that
conviction for certain offenses results in permanent disqualification from
employment
(o) Requirement for DDS
to prepare necessary forms and to promulgate procedures
(p) Requirement for DDS to establish remedies
to be imposed for failure to comply with the Act
(q) Requirement for all reports to remain
confidential and restricted to the use of parties specified in the Act, and
exempt from Freedom of Information Act (FOIA) disclosure, except to parties
identified in the Act
(r)
Requirement for the immunity of parties for damages, other than for malicious
acts or omissions
(s) Requirement
for completion of criminal record checks on all
current employees of a service provider by October 1,
2002
4.
Allowances under the Criminal
Record Check policy:
(a)
Allowances for continued temporary employment of an individual, if no finding
of fault records are found in a Central Registry, while awaiting the results of
a criminal record check
(b)
Allowances for employment of an individual upon determination by DDS that the
person is qualified for employment, based on the provisions of the
Act
(c) Allowances for employment
of individuals with one conviction for certain offenses if conviction was ten
years prior to application for employment
(d) Allowances for employment of an
individual convicted of a misdemeanor not related to exploitation, abuse,
neglect, or sexual abuse of a person
(e) Allowances for denial or revocation of a
service provider's license for failure to obtain criminal record checks in
compliance with the Act
(f)
Allowances for applicants and employees to challenge the completeness or
accuracy of criminal history information to the Arkansas State Police, Bureau
of Identification
5.
Exclusions from the Criminal Record Check policy: This
policy does
not apply to:
(a) A person who renders services subject to
a professional license as a:
Licensed professional counselor, social worker, nurse, occupational
therapist, pharmacist, physical therapist, physician, surgeon, podiatrist,
psychologist, psychological examiner, speech-language pathologist, audiologist,
or nursing home administrator.
(b) An individual who has maintained
employment in the state for twelve months, has successfully completed a
criminal record check, and submits evidence thereof.
6.
Offenses.
(a) These offenses
may
disqualify an individual from employment by a service provider, as
referenced in items 4. (c) and (d) of this policy:
1. Manslaughter, as prohibited in §
5-10-104;
2. Negligent homicide, as prohibited in
§
5-10-105;
3. False imprisonment in the first degree, as
prohibited in §
5-11-103;
4. Permanent detention or restraint, as
prohibited in §
5-11-106;
5. Robbery, as prohibited in §
5-12-102;
6. Aggravated robbery, as prohibited in
§
5-12-103;
7. Battery, as prohibited in §§ 5-
13-201,
5-13-202,
and
5-13-203;
8. Aggravated assault, as prohibited in
§
5-13-204;
9. Introduction of controlled substance into
body of another person, as prohibited in §
5-13-210;
10. Terroristic threatening in the first
degree, as prohibited in §
5-13-301;
11. Sexual solicitation of a child, as
prohibited in §
5-14-110;
12. Violation of a minor in the first degree
and second degree, as prohibited in §§
5-14-120 and
5-14-121;
13. Incest, as prohibited in §
5-26-202;
14. Offenses against the family, as
prohibited in §§
5-26-303
-
5-26-306;
15. Endangering the welfare of a minor in the
first degree, as prohibited in §
5-27-203;
16. Permitting child abuse, as prohibited in
§
5-27-221(a)(1) and
(a)(3);
17. Engaging children in sexually explicit
conduct for use in visual or print media, transportation of minors for
prohibited sexual conduct, pandering or possessing visual or print medium
depicting sexually explicit conduct involving a child, or use of a child or
consent to use of a child in a sexual performance by producing, directing, or
promoting a sexual performance by a child, as prohibited in §§
5-27-303,
5-27-304,
5-27-305,
5-27-402,
and
5-27-403;
18. Theft of property, as prohibited in
§
5-36-103;
19. Theft by receiving, as prohibited in
§
5-36-106;
20. Felony violation of the Uniform
Controlled Substances Act, as prohibited in §
5-64-401;
21. Burglary, as prohibited in §
5-39-201;
22. Promotion of prostitution in the first
degree, as prohibited in §
5-70-104;
23. Stalking, as prohibited in §
5-71-229;
24. Forgery, as prohibited in Sec.
5-37-201
25. Breaking or entering, as prohibited in
Sec
5-39-202;
26. Obtaining a controlled substance by
fraud, as prohibited in Sec.
5-64-403;
and
27. Criminal attempt, criminal
complicity, criminal solicitation, or criminal conspiracy as prohibited in
§§
5-3-201,
5-3-202,
5-3-301,
and
5-3-401,
to commit any of the offenses listed above.
(b) These offenses will
permanently disqualify a person from employment by a
service provider:
1. Capital murder, as
prohibited in §
5-10-101;
2. Murder in the first degree and second
degree, as prohibited in §§
5-10-102
and
5-10-103;
3. Kidnapping, as prohibited in §
5-11-102;
4. Rape and carnal abuse in the first degree,
second degree, and third degree, as prohibited in §§
5-14-103 -
5-14-106;
5. Sexual abuse in the first degree and
second degree, as prohibited in §§
5-14-108 and
5-14-109;
6. Endangering the welfare of an incompetent
person in the first degree, as prohibited in §
5-27-201;
7. Felony adult abuse, as prohibited by
§
5-28-103;
and
8. Arson, as prohibited in
§
5-38-301.
7.
Program
Management and Compliance Monitoring. The DDS Licensure Section
has the responsibility for managing the Criminal Record Check program and for
monitoring compliance with this policy and all related procedures.
References: Arkansas Code Annotated (ACA) §
20-48-701
et. seq., § 20-33-201 through 203
Department of Human Services Policy 1052 and Procedures
Administrative Rules and Regulations Subcommittee of the Arkansas
Legislative Council: reviewed December 6, 2001
Procedures For Conducting
Criminal Record Checks
On Employees of
Service Providers
For
Individuals With
Developmental Disabilities
March 5, 2003
Arkansas Department of Human Services Division of Developmental
Disabilities Services
AUTHORITY
Authority:
The following procedures for conducting criminal record checks on
employees of service providers of individuals with developmental disabilities
in the State of Arkansas are duly adopted and promulgated by the Arkansas
Department of Human Services, Division of Developmental Disabilities Services,
pursuant to the authority expressly conferred by:
Arkansas Code Annotated § 20-48-801et. seq. (Act
1548 of 2001). Arkansas Code Annotated § 20-33-201 through 203.
Supplements:
These procedures shall be promulgated as a supplemental part of the
following: DDS Standards and Guidelines for Community Programs - Section 200,
and contractual agreements with certified providers.
Severability:
If any provisions of these procedures, or the application thereof to
any person or circumstances is held invalid, such invalidity shall not affect
other provisions or applications which can be given effect without the invalid
provision or application, and to this end the provisions hereof are declared
severable.
Immunity:
Individuals, the licensing agency, service providers, and requesting
agencies are immune from suit or liability for damages for acts or omissions,
other than malicious acts or omissions, occurring in the performance of duties
imposed by Act 1548 of 2001.
"The Arkansas Department of Human Services is in compliance with Titles
VI and VII of the Civil Rights Act and operates, manages, and delivers services
without regard to age, religion, disability, political affiliation, veteran
status, sex, race, color or natural origin."
If you need this material in a different format, such as large print,
contact the DHS Americans with Disabilities Act Coordinator at (501) 682-6880
(voice) or 682-8933 (TDD).
Procedures for Conducting Criminal Record Checks March 2002
Procedures for
Conducting Criminal Record Checks
On Employees of Service Providers For Individuals with Developmental
Disabilities
100
DEFINITIONS
As used in these procedures the following definitions shall apply
unless the procedure clearly states otherwise:
Administrative capacity - Work by an employee
of a service provider that is of a business or financial nature and that does
not meet the definition of "care", as defined below
Bureau - The Identification Bureau of the
Department of the Arkansas State
Police
Care - The treatment, services, assistance,
education, training, instruction or supervision of an individual with
developmental disabilities, for which a service provider is reimbursed either
directly or by arrangement with a governmental agency or receives reimbursement
or payment either directly or indirectly from
Medicaid
Central Registry check - Review of one or more
Central Registries maintained by any Division of the Department of Human
Services or the Arkansas State Police
Employee - Any person who provides care (see
definition above) to an individual with developmental disabilities on behalf
of, under the supervision of, or by arrangement with a service provider or any
individual certified as a provider.
Also, any adult person who is living in an alternative living home or
in any other setting in which an employee of a service provider performs
services for which the service provider is paid by the government.
Also, any person provided by or pursuant to contract with a private
placement agency or contract-staffing agency.
Excluded from this definition is: a person who is a family member of
the individual being provided care, a person who serves as a volunteer, or a
person who works in an administrative capacity, as defined above.
Final Determination - The determination by the
licensing agency that an applicant or employee who has a criminal record is
qualified for or disqualified from employment
Individual with developmentally disabilities -
A person with a disability that is attributable to:
1. Mental retardation, cerebral palsy,
epilepsy, or autism;
2. Any other
condition of a person found to be closely related to mental retardation because
it results in an impairment of general intellectual functioning or adaptive
behavior similar to those of mentally retarded persons or requires treatment
and services similar to those required for mentally retarded persons;
or
3. Dyslexia resulting from a
disability associated with mental retardation, cerebral palsy, epilepsy, or
autism
Initial Determinations - Determinations made
by the service provider, which include:
1. The determination that an applicant or
employee is qualified for employment, based on the absence of any criminal
history by the applicant or employee;
2. The determination that a misdemeanor
criminal record or a felony criminal record must be referred to the licensing
agency for final determinations;
3.
The determination that an individual who has a misdemeanor criminal record or a
felony criminal record shall be temporarily disqualified from employment until
a final determination is made by the licensing agency.
Licensing agency - The government agency
(Department of Human Services, Division of Developmental Disabilities Services)
charged with licensing or certifying a service provider to provide care to
individuals with developmental disabilities, hereafter known as "DDS"
National criminal history check - A review of
national criminal records maintained by the Federal Bureau of Investigation
(FBI) based on fingerprint identification or other positive identification
methods, which must be preceded by a check of state records maintained by the
Bureau
National report - A statement of the criminal
history of an individual issued by the
FBI and sent to the licensing agency
Service provider - The qualified entity,
licensed or certified by DDS, that is responsible for direct care services to
individuals with developmental disabilities, hereafter known as
"provider"
State criminal history check - A review of
state criminal records conducted by the
Identification Bureau of the Arkansas State Police.
State report - A statement of the criminal
history of an individual issued by the Bureau and sent to the
provider.
200
IMPLEMENTATION REQUIREMENTS
201 Effective August 13, 2002,
(a) DDS shall issue a determination of
employment qualification or disqualification on a person, and
(b) providers shall not knowingly employ or
hire a person who has been found guilty or has pled guilty or nolo contendere
(no contest) to any of the offenses listed below by any court in the State of
Arkansas or to any similar offense by a court in another state or to any
similar offense in a federal court:
1.
Capital murder, as prohibited in Arkansas Code Annotated (A.C.A.) §
5-10-101;
2. Murder in the first degree and second
degree, as prohibited in A.C.A. §§
5-10-102
and
5-10-103;
3. Manslaughter, as prohibited in A.C.A.
§
5-10-104;
4. Negligent homicide, as prohibited in
A.C.A. §
5-10-105;
5. Kidnapping, as prohibited in A.C.A. §
5-11-102;
6. False imprisonment in the first degree, as
prohibited in A.C.A. §
5-11-103;
7. Permanent detention or restraint, as
prohibited in A.C.A. §
5-11-106;
8. Robbery, as prohibited in A.C.A. §
5-12-102;
9. Aggravated robbery, as prohibited in
A.C.A. §
5-12-103;
10. Battery, as prohibited in A.C.A.
§§
5-13-201,
5-13-202,
and
5-13-203;
11. Aggravated assault, as prohibited in
A.C.A. §
5-13-204;
12. Introduction of controlled substance into
body of another person, as prohibited in A.C.A. §
5-13-210;
13. Terroristic threatening in the first
degree, as prohibited in A.C.A. §
5-13-301;
14. Rape and carnal abuse in the first
degree, second degree, and third degree, as prohibited in A.C.A. §§
5-14-103 -
5-14-106;
15. Sexual abuse in the first degree and
second degree, as prohibited in A.C.A. §§
5-14-108 and
5-14-109;
16. Sexual solicitation of a child, as
prohibited in A.C.A. §
5-14-110;
17. Violation of a minor in the first degree
and second degree, as prohibited in A.C.A. §§
5-14-120 and
5-14-121;
18. Incest, as prohibited in A.C.A. §
5-26-202;
19. Offenses against the family, as
prohibited in A.C.A. §§
5-26-303
-
5-26-306;
20. Endangering the welfare of an incompetent
person in the first degree, as prohibited in A.C.A. §
5-27-201;
21. Endangering the welfare of a minor in the
first degree, as prohibited in A.C.A. §
5-27-203;
22. Permitting child abuse, as prohibited in
subdivisions (a)(1) and (a)(3) of A.C.A. §
5-27-221;
23. Engaging children in sexually explicit
conduct for use in visual or print media, transportation of minors for
prohibited sexual conduct, or pandering or possessing visual or print medium
depicting sexually explicit conduct involving a child, or use of a child or
consent to use of a child in a sexual performance by producing, directing, or
promoting a sexual performance by a child, as prohibited in A.C.A. §§
5-27-303,
5-27-304,
5-27-305,
5-27-402,
and
5-27-403;
24. Felony adult abuse, as prohibited in
A.C.A. §
5-28-103;
25. Theft of property, as prohibited in
A.C.A. §
5-36-103;
26. Theft by receiving, as prohibited in
A.C.A. §
5-36-106;
27. Arson, as prohibited in A.C.A. §
5-38-301;
28. Burglary, as prohibited in A.C.A. §
5-39-201;
29. Felony violation of the Uniform
Controlled Substances Act, as prohibited in A.C.A. §
5-64-401;
30. Promotion of prostitution in the first
degree, as prohibited in A.C.A. §
5-70-104;
31. Stalking, as prohibited in A.C.A. §
5-71-229;
32. Forgery, as prohibited in A.C.A. §
5-37-201
33. Breaking or entering, as prohibited in
A.C.A. §
5-39-202;
34. Obtaining a controlled substance by
fraud, as prohibited in A.C.A. §
5-64-403;
and
35. Criminal attempt, criminal
complicity, criminal solicitation, or criminal conspiracy, as prohibited in
§§
5-3-201,
5-3-202,
5-3-301,
and
5-3-401,
to commit any of the offenses listed in this subsection.
202 If an individual, however, has
one (1) date of conviction for offenses listed above in Section 201, this
conviction shall not, by itself, disqualify an applicant for employment if:
(a) the date of the one (1) conviction is at
least ten (10) years prior to the date of the application for employment,
and
(b) the individual has had no
criminal convictions of any type or nature during the intervening ten-year
period
unless the conviction was for one of the
offenses noted below. There is a permanent disqualification for employment for
the eight offenses noted in Section 203, regardless of the number of
convictions or the length of time since conviction.
203 Because of the serious nature of certain
offenses noted in Section 201 and because of the close relationship of the
offenses to the type of work that is to be performed, convictions for the
following offenses shall result in
permanent disqualification for
employment by service providers:
1. Capital
murder, as prohibited in A.C.A. §
5-10-101;
2. Murder in the first degree and second
degree, as prohibited in A.C.A. §§
5-10-102
and
5-10-103;
3. Kidnapping, as prohibited in A.C.A. §
5-11-102;
4. Rape and carnal abuse in the first degree,
second degree, and third degree, as prohibited in A.C.A. §§
5-14-103 -
5-14-106;
5. Sexual abuse in the first and second
degree, as prohibited in A.C.A. §§
5-14-108 and
5-14-109;
6. Endangering the welfare of an incompetent
person in the first degree, as prohibited in A.C.A. §
5-27-201;
7. Felony adult abuse, as prohibited in
A.C.A. §
5-28-103;
and
8. Arson, as prohibited in
A.C.A. §
5-38-301.
204 An applicant or employee may
be disqualified from employment when the applicant or employee has been found
guilty of or has pled guilty or nolo contendere (no contest) to a
misdemeanor if the offense involved:
1. exploitation of an adult,
2. abuse of a person,
3. neglect of a person,
4. theft, or
5. sexual contact.
Convictions for the above offenses will require a determination of
employment qualification or disqualification by DDS and must meet the single
conviction and ten-year timeframe as noted in Section 202.
205 Criminal record checks shall
be conducted on all current employees by October 1,
2002. All employees hired prior to August 13, 2001 shall request criminal
record checks in the same manner as new applicants for employment. These
requests may be made within any time frame chosen by the provider that ensures
that criminal record checks on all current employees are
completed by October 1, 2002.
206 Any applicant to
whom a provider intends to offer employment shall be subject to a criminal
record check initiated by the provider and following these procedures,
effective August 13, 2001. A criminal record check shall be performed on any
applicant to whom the provider intends to offer a position as an "employee" who
provides "care" to an individual with developmental disabilities, as these
terms are defined in Section 100 of these procedures.
207 Providers may determine the need to
utilize workers from a private placement agency or contract-staffing agency, or
to contract for care services from an outside vendor. In such cases, it shall
be the responsibility of the private placement agency, contract-staffing
agency, or outside vendor to initiate criminal record checks as provided by
these procedures
prior to placing the worker under the
provider's supervision. The process is as follows:
1. When a provider needs to utilize the
workers or services described above, the provider shall notify such
agency/vendor to contact DDS for information to conduct criminal record checks
as specified in these procedures.
2. Upon contact by an agency/vendor, DDS
shall send a packet containing policies, forms, and procedures related to
criminal record checks.
3. The
agency/vendor shall initiate criminal record checks on applicable employees as
prescribed in Section 300 of these procedures and shall send to DDS any reports
that contain criminal records.
4.
DDS shall issue a determination letter to the agency/vendor regarding the
employee's qualification or disqualification for employment based on the
criminal record report.
5. Upon the
assignment of a person to work for a provider, the provider shall obtain a copy
of the person's criminal record report from the agency. If a criminal record
was found, the provider also shall obtain a copy of the DDS determination
letter from the agency/vendor prior to allowing the individual to work for the
provider.
208 Except as
allowed below, providers shall insure completion of a request form and a
fingerprint card, and payment of separate, appropriate fees for conducting both
a state and a national (FBI) criminal record
check.
209 A state-only criminal
record check is allowed
only if the provider can
verify either of the following:
1. The
applicant has been employed in the State of Arkansas to provide care to
individuals with developmental disabilities within sixty (60) calendar days
before the application for employment, or
2. The applicant has lived continuously in
the State of Arkansas for the past five (5)
years.
Note: Examples of evidence that can be used to verify
residency include, but are not limited to: employment records, payroll check
stubs, tax records, rent/house payment records, utility bills, school records,
etc. Providers shall maintain copies of such residency verification when a
state-only criminal record check is conducted.
210 In a criminal record check that results
in the disqualification of an applicant or employee, the provider must provide
to the individual a copy of the determination letter issued by DDS.
211 A person may challenge the completeness
or accuracy of criminal history information issued by the Bureau. DDS shall
make employment determinations based on the information obtained from the
Bureau or FBI and shall not respond to allegations regarding the disposition,
expungement, or accuracy of the information. The process for the applicant or
employee to challenge the record is as follows:
1. Any challenges to the accuracy of the
report should be directed to:
State Identification Bureau #1 State Police Plaza Drive, Little Rock,
Arkansas 72209 (501) 618-8500.
2. A person, upon positive identification
verification, may review his/her criminal history information maintained by the
Identification Bureau or the central repository.
3. Only the subject, the subject and his/her
attorney, or the subject's attorney authorized in writing by the subject may
review criminal history information.
4. If, after review, the subject believes
that the records are incorrect or incomplete, he/she may request an examination
and correction of the records by the agency responsible for the
records.
5. If it is determined
that the criminal history information is inaccurate, incomplete, or improperly
maintained, that information shall be corrected.
6. The agency responsible for the records
shall immediately notify every agency or person known to have received this
information within the previous one-year period and provide them with corrected
information.
7. A person whose
record has been corrected has the right to know the names of those agencies or
individuals known to have received the previously incorrect criminal history
information.
8. The right of a
person to review his/her criminal history record shall not be used by a
prospective employer or others as a means to circumvent procedures or fees for
accessing records for non-criminal justice purposes.
212 All reports obtained under these
procedures are confidential and are restricted to the exclusive use of the
Arkansas Crime Information Center, the Bureau, DDS, the provider, and the
person who is the subject of the report. The information contained in reports
shall not be released or otherwise disclosed to any other person or agency
except by court order and are specifically
exempt from
disclosure under the Arkansas Freedom of Information (FOI) Act (A.C.A. §
25-19-101,et
seq.) except to DDS, the provider, or other requesting agency.
Information kept on file at a service provider concerning criminal
records should have limited access. This may be accomplished by use of a locked
cabinet or by storage in the director's office.
Note: Act 1109 of 1993 (A.C.A. §
12-12-1013
) states that criminal history information may be provided to the subject, the
subject's attorney, or other person who is authorized in writing by the
subject.
213 Each provider shall
maintain on file, subject to inspection by the Arkansas Crime Information
Center, the Bureau, or DDS, evidence that the provider has complied with the
requirements of these procedures. Providers shall maintain copies of completed,
signed and notarized criminal record check requests, state criminal record
reports, residency verification, and final determinations received from DDS.
300
CRIMINAL RECORD CHECK
PROCESS FOR APPLICANTS AND EMPLOYEES
301 A criminal record check must be conducted
by the provider when a person applies for a position
as an employee, as defined by these procedures, if the provider intends to make
an offer of employment to the applicant. The process as described in this
section for applicants shall also be used when current
employees submit to criminal record checks as required by Section
205 of these procedures.
302 Before
making an offer of employment, and on an on-going basis for current employees,
a provider shall inform applicants and employees that initial and continued
employment are dependent upon the results of criminal history record
checks.
303 DDS shall maintain a
file of individuals on whom final determinations of qualification or
disqualification for employment have been made, based on criminal record check
information provided to DDS. The file may also contain determinations of
employment disqualification based on administrative findings of abuse, neglect,
theft, etc., by individuals that did not result in criminal
convictions.
304 Before performing
a criminal record check on an applicant, a provider shall request a review by
DDS of this determination file, which will be available for inquiries by
telephone during normal business hours, Monday through Friday. The process to
check the file shall be as follows:
1. At the
time the provider makes an offer of employment to an applicant and prior to
submitting forms for a criminal record check, the provider shall call DDS
Licensure.
2. The provider shall
query DDS on an individual, using the individual's name, social security
number, date of birth, and other identifying information.
3. If a disqualification determination record
does exist, DDS will inform the provider.
4. An applicant with a disqualification
determination is not eligible for hire in a position as an "employee" who
provides "care" to an individual with developmental disabilities, as these
terms are defined in Section 100 of these procedures.
5. If the applicant has no record of
disqualification for employment in the determination file, the provider may
initiate the criminal record check and offer temporary employment to the
applicant.
6. A provider is not
required to check the DDS determination file when an employee hired before
August 13, 2001 requests a criminal record check.
305 A provider must initiate a check of both
the Central Registry for adult abuse and to the Central Registry for child
abuse on an individual to whom the provider intends to offer employment. The
provider may continue temporary employment of an applicant while waiting for
the results of these Registry checks. If no finding of fault record is found,
the provider may continue temporary employment of the individual, while waiting
for criminal record check results.
If, however, a finding of fault record is found in either Registry, the
individual who receives this information shall notify the Board of Directors of
a licensed provider and the Director of a certified provider in
writing so that corrective action measures may be determined.
These measures may include, but are not limited to, training, probationary
employment, or termination of employment. Should a Board of Directors/Certified
Program Director decide to hire or continue the employment of an individual
with a finding of fault record in a Central Registry, the Board/Director
assumes any additional liability that may arise from that decision.
A provider shall initiate a check to both Central Registries when a
current employee requests a criminal record check
unless the employee has maintained continuous employment with the provider and
Central Registry checks were performed within twenty-four (24) months of the
criminal record check. The person who receives the new report or verifies the
existing report on a current employee shall notify the provider's Board of
Directors if a finding of fault record is/was found. The Board may then take
whatever corrective actions it deems appropriate,
306 If the provider intends to offer
employment and the determination file at DDS lists no employment
disqualification determination, the provider shall begin the criminal record
check process. At this time the provider shall determine the Arkansas
residential and/or employment status of the applicant, as described in Section
209 of these procedures. The provider shall instruct the applicant to complete
and sign a criminal record check request form bearing the DDS routing number,
which may be obtained from DDS. The person's signature must be notarized. A
fingerprint card obtained from DDS must be completed, if a national record
check is required.
307 The provider
shall forward the request form, a self-addressed envelope, and appropriate
fee(s) to the Identification Bureau of the Arkansas State Police within five
(5) working days. If a national record check is required (see Section 209),
both a national (FBI) record check and a state record
check must be performed and a completed fingerprint card and separate fee must
be sent. The provider must maintain a copy of the completed, signed, and
notarized criminal record request form for verification of compliance (see
Section 211). Request forms (DDS-5088) and fingerprint cards preprinted with
the DDS routing number and DDS' statutory authority for fingerprinting must be
used and may be obtained from DDS.
308 If an applicant or a current employee
informs the provider, either verbally or in writing, of a prior criminal
record, the provider shall temporarily disqualify the individual from
employment until:
(a) The criminal record
request form and fees are sent to the Bureau,
(a) the criminal record report is received
from the Bureau,
(b) the report is
sent to DDS, and
(c) a final
determination is received from DDS.
309 Upon receipt of a correctly completed
criminal record check request form and the appropriate fee, the Bureau shall
perform a state criminal record check and shall forward to the FBI the form,
fee, and fingerprint card required for a national record check, if required.
Within three (3) working days of receipt of a request, the Bureau shall issue a
report to the provider of the results of an Arkansas criminal record
check.
310 The provider will review
the criminal record report sent by the Bureau and:
(a) If no criminal
record is found, the provider may continue employment of the
individual.
(b) If a criminal
record is found, the provider will temporarily disqualify the individual from
employment. The provider will then send the criminal record report by mail or
by facsimile transmission (fax) to DDS for a determination. DDS will make a
determination of employment qualification or disqualification, in accordance
with requirements specified in Sections 201 - 204 of these
procedures.
311 Reports
from the FBI that are the result of a national criminal record check will
not be sent to providers. These reports will be sent
directly to DDS. The information contained in these FBI reports is not
releasable to providers. DDS will make a determination of employment
qualification or disqualification, in accordance with requirements specified in
Sections 201 - 204 of these procedures, based on the report received from the
FBI.
312 DDS shall forward its
determination of employment qualification or disqualification to the provider
in writing. A person with a disqualification determination is not eligible to
work in a position as an "employee" who provides "care" to an individual with
developmental disabilities, as these terms are defined in Section 100 of these
procedures. The provider shall terminate the employment of a person who has
been disqualified for such a position.
400
EXCEPTIONS/EXCLUSIONS
401
Any person who submits evidence of:
(a)
continuous employment in the State of Arkansas for the past 12 months,
and
(b)
successful completion of a criminal record check within the last 12 months or
in accordance with that person's professional license,
shall not be required to apply for a new criminal record check. The
provider must maintain copies of the previous criminal record check. If a
criminal record is found on this earlier criminal record check, the provider
must submit the report to DDS ans DDS must make a determination of
qualification for employment. Note: To be acceptable, a previously
conducted criminal record check must comply with provisions set forth in Act
1548 of 2001, including a national FBI record check, when warranted. Criminal
record checks performed on provider employees under the direction and
regulations of the Department of Human Services, the Division of Child Care and
Early Childhood Education and the Division of Medical Services, Office of Long
Term Care, are considered to be acceptable. These reports must be on file with
the provider.
402 The requirement for a criminal record
check under these procedures shall not apply to persons who render care subject
to professional licenses obtained for the following occupations:
1. Licensed professional
counselors,
2. Social
workers,
3. Dentists,
4. Registered or licensed practical
nurses,
5. Occupational
therapists,
6.
Pharmacists,
7. Physical
therapists,
8. Physicians and
surgeons,
9. Podiatrists,
10. Psychologists and psychological
examiners,
11. Speech-language
pathologists and audiologists, or
12. Nursing home administrators.
500
WAIVERS
501 The provisions
of these procedures may not be waived by the licensing agency.
600
PENALTIES
601 Failure to obtain criminal record checks
shall be grounds for DDS to deny or revoke a provider's license or
certification. This includes failure to maintain on file documentation that
criminal record checks were initiated by the provider, copies of criminal
record check reports received by the provider, verification of residency for
state-only checks, and copies of employment determinations made by DDS as
specified in these procedures. Decisions regarding license denial or revocation
shall be made by the Director of DDS.
602 Failure to comply with employment
disqualification determinations made by DDS or other requirements of these
procedures shall be grounds for the imposition of sanctions against a provider.
Failure to comply shall include, but is not limited to, the hiring or continued
employment of an individual who has been deemed disqualified for employment in
a position as an "employee" who provides "care" to an individual with
developmental disabilities, as these terms are defined in Section 100 of these
procedures. Sanctions may include but are not limited to:
* Revocation of the provider's license or certification
* Probationary status of the provider's license or
certification,
* Suspension of the provider's license or certification for a specific
period of time,
* Denial of funding for new clients for a specific period of time,
or
* Any combination of sanctions deemed appropriate. Decisions regarding
sanctions shall be made by the Director of DDS.
603 When determining whether to impose
denial, revocation, or other sanctions and in affixing the type of penalty, the
Director shall consider:
1. The gravity of
the violation, including the probability that death or serious physical or
psychological harm to an individual will result or has resulted;
2. The severity and scope of the actual or
potential harm;
3. The extent to
which the provisions of the statutes or procedures were violated;
4. Indications of "good faith" exercised by
the provider, which may include:
(a)
Awareness of the applicable statutes and procedures and reasonable diligence in
securing compliance;
(b) Prior
accomplishments manifesting the provider's desire to comply with the
requirements;
(c) Efforts to
correct; and
(d) Any other
mitigating factors in favor of the provider.
700
APPEALS
701 An administrative hearing is available to
a person, herein referred to as a petitioner, who disagrees with a
determination of employment disqualification or a decision regarding licensure
denial or revocation, or other sanction imposed by DDS, as described in these
procedures. These provisions do not apply to a person's challenge of the record
obtained from the Bureau (see Section 210 of these procedures).
702 In the event that a petitioner wishes to
appeal a decision by DDS, he or she may do so by following the appropriate
appeals process detailed in:
* DDS Policy 1076 (for providers), or
* DHS Policy 1098.0 (for applicants and employees) which may be
obtained from DDS.
