Fla. Admin. Code Ann. R. 59A-35.090 - Background Screening
(1)
Definitions:
(a) "Arrest Report" means the
detailed narrative written by the arresting law enforcement officer explaining
the circumstances of the arrest.
(b) "Disposition" means the sentencing or
other final settlement of a criminal case which shall include, regardless of
adjudication, a plea of nolo contendere or guilty, or a conviction by a judge
or jury.
(c) "Disqualifying
Offense" means any criminal offense prohibited in Sections
435.04
or
408.809(4),
F.S.
(d) "Exemption from
Disqualification" means an exemption granted by the Agency following a review
of the Background Screening Application for Exemption, AHCA Form 3110-0019,
January 2017, hereby incorporated by reference, and available at
http://www.flrules.org/Gateway/reference.asp?No=Ref-09105,
and an informal teleconference, during which the individual must present clear
and convincing evidence to support a reasonable belief that he or she has been
rehabilitated and does not present a danger to the health, safety, and welfare
of the patient or individual as described in Section 435.07, F.S.
(e) "FBI" means the Federal Bureau of
Investigation.
(f) "FDLE" means the
Florida Department of Law Enforcement.
(g) "Level 2 Screening" means an assessment
of the criminal history record obtained through a fingerprint search through
the FDLE and FBI to determine whether screened individuals have any
disqualifying offenses pursuant to Section
435.04
or
408.809(4),
F.S. An analysis and review of court dispositions and arrest reports may be
required to make a final determination.
(h) "Livescan Service Provider" means an
entity that scans fingerprints electronically and submits them to
FDLE.
(2) Processing
Screening Requests, Required Documents and Fees.
(a) Providers subject to the screening
standards outlined in Section
408.809,
F.S., must follow the requirements specified in Section
435.12,
F.S. Care Provider Background Screening Clearinghouse and must register and
initiate all criminal history checks through the Care Provider Background
Screening Clearinghouse before referring an employee or potential employee for
electronic fingerprint submission to the Department of Law Enforcement.
Providers can access the Care Provider Background Screening Clearinghouse at:
http://ahca.myflorida.com/MCHQ/Central_Services/Background_Screening/index.shtml.
(b) Persons required to undergo Level 2
background screening must submit fingerprints electronically through a Livescan
Service Provider(s) contracted through the Agency or approved through the
Florida Department of Law Enforcement. Payment for screening services must be
made to the Livescan Service Provider at the time of services or through a
payment arrangement with the Livescan Service Provider.
(c) If the individual's fingerprints are
rejected by the FBI due to illegible prints, the requesting provider will be
notified through the Agency's secure website. The individual must return to the
same Livescan Service Provider and submit a second set of fingerprints in
accordance with the guidelines established by the FBI. If the fingerprints are
not resubmitted within 14 days, the individual will be notified by letter from
the Agency. The second set of prints must be submitted within 21 days of the
Agency's request or the screening request will be considered withdrawn. If
withdrawn, the individual must submit a new set of electronic fingerprints
through a Livescan Service Provider accompanied by the required fee.
(d) An Attestation of Compliance with
Background Screening Requirements, AHCA Form 3100-0008, January 2017, herein
incorporated by reference, available at
http://www.flrules.org/Gateway/reference.asp?No=Ref-09106,
and available from the Agency for Health Care Administration at:
http://ahca.myflorida.com/MCHQ/Central_Services/Background_Screening/Regulations_Forms.shtml.
This form must be completed by the individual and retained by the provider upon
hire to attest that they meet the requirements for qualifying for employment,
they have not been unemployed for more than 90 days from a position that
requires Level 2 screening, and they agree to inform the employer immediately
if arrested for any disqualifying offense.
(e) An administrator or chief financial
officer must be screened and qualified prior to appointment to the
position.
(3) Results of
Screening and Notification.
(a) Final results
of background screening requests will be provided through the Agency's secure
website that may be accessed by all health care providers applying for or
actively licensed through the Agency that are registered with the Care Provider
Background Screening Clearinghouse. The secure website is located at:
apps.ahca.myflorida.com/SingleSignOnPortal.
(b) If a Level 2 criminal history is
incomplete, a certified letter will be sent to the individual being screened
requesting the arrest report and court disposition information. If the letter
is returned unclaimed, a copy of the letter will be sent by regular mail.
Pursuant to Section
435.05(1)(d),
F.S., the missing information must be filed with the Agency within 30 days of
the Agency's request or the individual is subject to disqualification in
accordance with Section
435.06(3),
F.S.
(c) The eligibility results of
employee screening and the signed Attestation referenced in subsection
59A-35.090(2), F.A.C., must be in the employee's personnel file, maintained by
the provider.
(4)
Exemption from Disqualification.
(a) Requests
for an exemption from disqualification shall be submitted in writing to the
Agency using the Background Screening Application for Exemption, AHCA Form
3110-0019, January 2017.
(b)
Individuals that are licensed or certified in a profession under the
jurisdiction of the Department of Health must apply for an exemption to the
appropriate licensing or certifying board at the Department of Health unless
the individual will be working in a position other than for which they are
licensed or certified.
(c) The
individual shall bear the burden of setting forth clear and convincing evidence
of rehabilitation which includes any information indicating the individual
presents no danger to the safety or well being of others. The individual must
present such evidence as arrest reports, court dispositions, parole/probation
information, and reference letters from employers, and/or personal references.
Other documents that may be included are records of successful participation in
a rehabilitation program, further education or training, community or church
involvement, special awards or recognition or testimony by self or
others.
(d) An "Application for
Exemption" will not be reviewed until all required documents are obtained. If
the application is deemed incomplete after 30 days of receipt by the Agency,
the application will be closed.
(e)
In deciding whether to grant or deny an exemption request, the Agency shall
consider factors such as the facts and circumstances surrounding the
disqualifying offense(s), the nature of the harm to the victim, whether the
individual is on probation or parole, whether restitution has been made, other
offenses on the criminal history record and the length of time since the last
offense, the history of the person since the disqualifying offense(s), work
experience, personal references, performance evaluations, probation or parole
violations, education, other evidence of rehabilitation, and the honesty and
candor of the disqualified individual.
(f) Any exemption granted by the Agency is
limited to the information provided at the time of application and the
disqualifying offense or offenses committed prior to the date of the request
for exemption.
(g) The Agency shall
void any exemption granted to an individual when there is evidence that
information which would adversely affect the decision was not made available at
the time of the determination or there is an arrest or disposition of a new
disqualifying offense since the date the exemption was granted.
(5) Unless otherwise specified,
information requested pursuant to this section must be filed with the Agency
within 21 days of the Agency's request.
Notes
Rulemaking Authority 408.809, 408.819, 435.01 FS. Law Implemented 408.809, 408.810, 435.07 FS.
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