Florida Senate - 2011 CS for SB 1992
By the Committees on Budget; and Children, Families, and Elder
Affairs
576-04685-11 20111992c1
1 A bill to be entitled
2 An act relating to background screening; amending s.
3 409.1757, F.S.; adding law enforcement officers who
4 have a good moral character to the list of
5 professionals who are not required to be
6 refingerprinted or rescreened; amending s. 430.0402,
7 F.S.; including volunteers within the definition of
8 the term “direct service provider” for purposes of
9 required background screening; exempting a volunteer
10 who meets certain criteria and a client’s relative or
11 spouse from the screening requirement; excepting
12 certain licensed professionals and persons screened as
13 a licensure requirement from further screening under
14 certain circumstances; requiring direct service
15 providers working as of a certain date to be screened
16 within a specified period; providing a phase-in for
17 screening direct service providers; requiring that
18 employers of direct service providers and certain
19 other individuals be rescreened every 5 years unless
20 fingerprints are retained electronically by the
21 Department of Law Enforcement; removing an offense
22 from the list of disqualifying offenses for purposes
23 of background screening; amending s. 435.04, F.S.;
24 requiring vendors who submit fingerprints on behalf of
25 employers to meet specified criteria; requiring that
26 fingerprints be retained for any person screened by a
27 certain date; amending s. 435.07, F.S.; providing that
28 personnel of a qualified entity as defined in ch. 943,
29 F.S., may apply for an exemption from screening;
30 amending s. 408.809, F.S.; eliminating a rule that
31 requires the Agency for Health Care Administration to
32 stagger rescreening schedules; providing a rescreening
33 schedule; requiring the establishment of a statewide
34 interagency workgroup relating to statewide background
35 screening procedures and information sharing;
36 providing for membership; requiring the workgroup to
37 submit a report to the Legislature by a specified
38 date; setting forth the topics that, at a minimum, the
39 workgroup must address in its work plan; providing an
40 effective date.
41
42 Be It Enacted by the Legislature of the State of Florida:
43
44 Section 1. Section 409.1757, Florida Statutes, is amended
45 to read:
46 409.1757 Persons not required to be refingerprinted or
47 rescreened.—Any provision of law to the contrary
48 notwithstanding, human resource personnel who have been
49 fingerprinted or screened pursuant to chapters 393, 394, 397,
50 402, and this chapter, and teachers who have been fingerprinted
51 pursuant to chapter 1012, and law enforcement officers who meet
52 the requirements of s. 943.13, who have not been unemployed for
53 more than 90 days thereafter, and who under the penalty of
54 perjury attest to the completion of such fingerprinting or
55 screening and to compliance with the provisions of this section
56 and the standards for good moral character as contained in such
57 provisions as ss. 110.1127(3), 393.0655(1), 394.457(6), 397.451,
58 402.305(2), and 409.175(6), and 943.13(7), are shall not be
59 required to be refingerprinted or rescreened in order to comply
60 with any caretaker screening or fingerprinting requirements.
61 Section 2. Section 430.0402, Florida Statutes, is amended
62 to read:
63 430.0402 Screening of direct service providers.—
64 (1)(a) Level 2 background screening pursuant to chapter 435
65 is required for direct service providers. Background screening
66 includes employment history checks as provided in s. 435.03(1)
67 and local criminal records checks through local law enforcement
68 agencies.
69 (b) For purposes of this section, the term “direct service
70 provider” means a person 18 years of age or older, including a
71 volunteer, who, pursuant to a program to provide services to the
72 elderly, has direct, face-to-face contact with a client while
73 providing services to the client and or has access to the
74 client’s living areas or to the client’s funds or personal
75 property. The term does not include includes coordinators,
76 managers, and supervisors of residential facilities and
77 volunteers who assist on an intermittent basis for less than 20
78 hours of direct, face-to-face contact with a client per month,
79 individuals who are related by blood to the client, or the
80 client’s spouse.
81 (2) Licensed physicians or, nurses, or other professionals
82 licensed by the Department of Health, or attorneys in good
83 standing with The Florida Bar are not subject to background
84 screening if they are providing a service that is within the
85 scope of their licensed practice.
86 (3) Individuals qualified for employment by the Agency for
87 Health Care Administration pursuant to the agency’s background
88 screening standards for licensure or employment contained in s.
89 408.809 are not subject to subsequent or additional Level 2
90 screening pursuant to chapter 435, or to the unique screening
91 requirements of this section, by virtue of their employment as a
92 direct service provider if they are providing a service that is
93 within the scope of their licensed practice.
94 (4)(3) Refusal on the part of an employer to dismiss a
95 manager, supervisor, or direct service provider who has been
96 found to be in noncompliance with standards of this section
97 shall result in the automatic denial, termination, or revocation
98 of the license or certification, rate agreement, purchase order,
99 or contract, in addition to any other remedies authorized by
100 law.
101 (5) Individuals serving as direct service providers on July
102 31, 2010, must be screened by July 1, 2012. The department may
103 adopt rules to establish a schedule to stagger the
104 implementation of the required screening over a 1-year period,
105 beginning July 1, 2011, through July 1, 2012.
106 (6) An employer of a direct service provider who previously
107 qualified for employment or volunteer work under Level 1
108 screening standards or an individual who is required to be
109 screened according to the Level 2 screening standards contained
110 in chapter 435, pursuant to this section, shall be rescreened
111 every 5 years following the date of his or her last background
112 screening or exemption, unless such individual’s fingerprints
113 are continuously retained and monitored by the Department of Law
114 Enforcement in the federal fingerprint retention program
115 according to the procedures specified in s. 943.05.
116 (7)(4) The background screening conducted pursuant to this
117 section must ensure that, in addition to the disqualifying
118 offenses listed in s. 435.04, no person subject to the
119 provisions of this section has an arrest awaiting final
120 disposition for, has been found guilty of, regardless of
121 adjudication, or entered a plea of nolo contendere or guilty to,
122 or has been adjudicated delinquent and the record has not been
123 sealed or expunged for, any offense prohibited under any of the
124 following provisions of state law or similar law of another
125 jurisdiction:
126 (a) Any authorizing statutes, if the offense was a felony.
127 (a)(b) Section 409.920, relating to Medicaid provider
128 fraud.
129 (b)(c) Section 409.9201, relating to Medicaid fraud.
130 (c)(d) Section 817.034, relating to fraudulent acts through
131 mail, wire, radio, electromagnetic, photoelectronic, or
132 photooptical systems.
133 (d)(e) Section 817.234, relating to false and fraudulent
134 insurance claims.
135 (e)(f) Section 817.505, relating to patient brokering.
136 (f)(g) Section 817.568, relating to criminal use of
137 personal identification information.
138 (g)(h) Section 817.60, relating to obtaining a credit card
139 through fraudulent means.
140 (h)(i) Section 817.61, relating to fraudulent use of credit
141 cards, if the offense was a felony.
142 (i)(j) Section 831.01, relating to forgery.
143 (j)(k) Section 831.02, relating to uttering forged
144 instruments.
145 (k)(l) Section 831.07, relating to forging bank bills,
146 checks, drafts, or promissory notes.
147 (l)(m) Section 831.09, relating to uttering forged bank
148 bills, checks, drafts, or promissory notes.
149 Section 3. Paragraph (e) is added to subsection (1) of
150 section 435.04, Florida Statutes, and subsection (4) is added to
151 that section, to read:
152 435.04 Level 2 screening standards.—
153 (1)
154 (e) Vendors who submit fingerprints on behalf of employers
155 must:
156 1. Use technology that is compliant with systems used by
157 the Department of Law Enforcement;
158 2. Have the ability to communicate electronically with the
159 state agency accepting screening results from the Department of
160 Law Enforcement; and
161 3. Capture two sets of fingerprint images from each
162 individual screened. If the first set of prints are deemed
163 illegible as determined by the Department of Law Enforcement or
164 the Federal Bureau of Investigation, the vendor shall submit the
165 second set of prints after being so notified by the agency
166 requiring the screening.
167 (4) Fingerprints required for screening under this section
168 shall be retained for any person who is screened on or before
169 July 1, 2013.
170 Section 4. Subsection (6) is added to section 435.07,
171 Florida Statutes, to read:
172 435.07 Exemptions from disqualification.—Unless otherwise
173 provided by law, the provisions of this section apply to
174 exemptions from disqualification for disqualifying offenses
175 revealed pursuant to background screenings required under this
176 chapter, regardless of whether those disqualifying offenses are
177 listed in this chapter or other laws.
178 (6) Personnel of a qualified entity as described in s.
179 943.0542, who are required to be screened pursuant to s. 435.04,
180 may apply for an exemption pursuant to this chapter.
181 Section 5. Section 408.809, Florida Statutes, is amended to
182 read:
183 408.809 Background screening; prohibited offenses.—
184 (1) Level 2 background screening pursuant to chapter 435
185 must be conducted through the agency on each of the following
186 persons, who are considered employees for the purposes of
187 conducting screening under chapter 435:
188 (a) The licensee, if an individual.
189 (b) The administrator or a similarly titled person who is
190 responsible for the day-to-day operation of the provider.
191 (c) The financial officer or similarly titled individual
192 who is responsible for the financial operation of the licensee
193 or provider.
194 (d) Any person who is a controlling interest if the agency
195 has reason to believe that such person has been convicted of any
196 offense prohibited by s. 435.04. For each controlling interest
197 who has been convicted of any such offense, the licensee shall
198 submit to the agency a description and explanation of the
199 conviction at the time of license application.
200 (e) Any person, as required by authorizing statutes,
201 seeking employment with a licensee or provider who is expected
202 to, or whose responsibilities may require him or her to, provide
203 personal care or services directly to clients or have access to
204 client funds, personal property, or living areas; and any
205 person, as required by authorizing statutes, contracting with a
206 licensee or provider whose responsibilities require him or her
207 to provide personal care or personal services directly to
208 clients. Evidence of contractor screening may be retained by the
209 contractor’s employer or the licensee.
210 (2) Every 5 years following his or her licensure,
211 employment, or entry into a contract in a capacity that under
212 subsection (1) would require level 2 background screening under
213 chapter 435, each such person must submit to level 2 background
214 rescreening as a condition of retaining such license or
215 continuing in such employment or contractual status. For any
216 such rescreening, the agency shall request the Department of Law
217 Enforcement to forward the person’s fingerprints to the Federal
218 Bureau of Investigation for a national criminal history record
219 check. If the fingerprints of such a person are not retained by
220 the Department of Law Enforcement under s. 943.05(2)(g), the
221 person must file a complete set of fingerprints with the agency
222 and the agency shall forward the fingerprints to the Department
223 of Law Enforcement for state processing, and the Department of
224 Law Enforcement shall forward the fingerprints to the Federal
225 Bureau of Investigation for a national criminal history record
226 check. The fingerprints may be retained by the Department of Law
227 Enforcement under s. 943.05(2)(g). The cost of the state and
228 national criminal history records checks required by level 2
229 screening may be borne by the licensee or the person
230 fingerprinted. Proof of compliance with level 2 screening
231 standards submitted within the previous 5 years to meet any
232 provider or professional licensure requirements of the agency,
233 the Department of Health, the Agency for Persons with
234 Disabilities, the Department of Children and Family Services, or
235 the Department of Financial Services for an applicant for a
236 certificate of authority or provisional certificate of authority
237 to operate a continuing care retirement community under chapter
238 651 satisfies the requirements of this section if the person
239 subject to screening has not been unemployed for more than 90
240 days and such proof is accompanied, under penalty of perjury, by
241 an affidavit of compliance with the provisions of chapter 435
242 and this section using forms provided by the agency.
243 (3) All fingerprints must be provided in electronic format.
244 Screening results shall be reviewed by the agency with respect
245 to the offenses specified in s. 435.04 and this section, and the
246 qualifying or disqualifying status of the person named in the
247 request shall be maintained in a database. The qualifying or
248 disqualifying status of the person named in the request shall be
249 posted on a secure website for retrieval by the licensee or
250 designated agent on the licensee’s behalf.
251 (4) In addition to the offenses listed in s. 435.04, all
252 persons required to undergo background screening pursuant to
253 this part or authorizing statutes must not have an arrest
254 awaiting final disposition for, must not have been found guilty
255 of, regardless of adjudication, or entered a plea of nolo
256 contendere or guilty to, and must not have been adjudicated
257 delinquent and the record not have been sealed or expunged for
258 any of the following offenses or any similar offense of another
259 jurisdiction:
260 (a) Any authorizing statutes, if the offense was a felony.
261 (b) This chapter, if the offense was a felony.
262 (c) Section 409.920, relating to Medicaid provider fraud.
263 (d) Section 409.9201, relating to Medicaid fraud.
264 (e) Section 741.28, relating to domestic violence.
265 (f) Section 817.034, relating to fraudulent acts through
266 mail, wire, radio, electromagnetic, photoelectronic, or
267 photooptical systems.
268 (g) Section 817.234, relating to false and fraudulent
269 insurance claims.
270 (h) Section 817.505, relating to patient brokering.
271 (i) Section 817.568, relating to criminal use of personal
272 identification information.
273 (j) Section 817.60, relating to obtaining a credit card
274 through fraudulent means.
275 (k) Section 817.61, relating to fraudulent use of credit
276 cards, if the offense was a felony.
277 (l) Section 831.01, relating to forgery.
278 (m) Section 831.02, relating to uttering forged
279 instruments.
280 (n) Section 831.07, relating to forging bank bills, checks,
281 drafts, or promissory notes.
282 (o) Section 831.09, relating to uttering forged bank bills,
283 checks, drafts, or promissory notes.
284 (p) Section 831.30, relating to fraud in obtaining
285 medicinal drugs.
286 (q) Section 831.31, relating to the sale, manufacture,
287 delivery, or possession with the intent to sell, manufacture, or
288 deliver any counterfeit controlled substance, if the offense was
289 a felony.
290 (5) A person who serves as a controlling interest of, is
291 employed by, or contracts with a licensee on July 31, 2010, who
292 has been screened and qualified according to standards specified
293 in s. 435.03 or s. 435.04 must be rescreened by July 31, 2015 in
294 compliance with the following schedule. The agency may adopt
295 rules to establish a schedule to stagger the implementation of
296 the required rescreening over the 5-year period, beginning July
297 31, 2010, through July 31, 2015. If, upon rescreening, such
298 person has a disqualifying offense that was not a disqualifying
299 offense at the time of the last screening, but is a current
300 disqualifying offense and was committed before the last
301 screening, he or she may apply for an exemption from the
302 appropriate licensing agency and, if agreed to by the employer,
303 may continue to perform his or her duties until the licensing
304 agency renders a decision on the application for exemption if
305 the person is eligible to apply for an exemption and the
306 exemption request is received by the agency within 30 days after
307 receipt of the rescreening results by the person. The
308 rescreening schedule shall be:
309 (a) Individuals for whom the last screening was conducted
310 on or before December 31, 2003, must be rescreened by July 31,
311 2013.
312 (b) Individuals for whom the last screening conducted was
313 between January 1, 2004, and December 31, 2007, must be
314 rescreened by July 31, 2014.
315 (c) Individuals for whom the last screening conducted was
316 between January 1, 2008, through July 31, 2010, must be
317 rescreened by July 31, 2015.
318 (6)(5) The costs associated with obtaining the required
319 screening must be borne by the licensee or the person subject to
320 screening. Licensees may reimburse persons for these costs. The
321 Department of Law Enforcement shall charge the agency for
322 screening pursuant to s. 943.053(3). The agency shall establish
323 a schedule of fees to cover the costs of screening.
324 (7)(6)(a) As provided in chapter 435, the agency may grant
325 an exemption from disqualification to a person who is subject to
326 this section and who:
327 1. Does not have an active professional license or
328 certification from the Department of Health; or
329 2. Has an active professional license or certification from
330 the Department of Health but is not providing a service within
331 the scope of that license or certification.
332 (b) As provided in chapter 435, the appropriate regulatory
333 board within the Department of Health, or the department itself
334 if there is no board, may grant an exemption from
335 disqualification to a person who is subject to this section and
336 who has received a professional license or certification from
337 the Department of Health or a regulatory board within that
338 department and that person is providing a service within the
339 scope of his or her licensed or certified practice.
340 (8)(7) The agency and the Department of Health may adopt
341 rules pursuant to ss. 120.536(1) and 120.54 to implement this
342 section, chapter 435, and authorizing statutes requiring
343 background screening and to implement and adopt criteria
344 relating to retaining fingerprints pursuant to s. 943.05(2).
345 (9)(8) There is no unemployment compensation or other
346 monetary liability on the part of, and no cause of action for
347 damages arising against, an employer that, upon notice of a
348 disqualifying offense listed under chapter 435 or this section,
349 terminates the person against whom the report was issued,
350 whether or not that person has filed for an exemption with the
351 Department of Health or the agency.
352 Section 6. The Department of Children and Family Services,
353 the Agency for Health Care Administration, the Department of
354 Elderly Affairs, the Department of Health, the Agency for
355 Persons with Disabilities, and the Department of Law Enforcement
356 shall create a statewide interagency background screening
357 workgroup for the purpose of developing a work plan for
358 implementing a statewide system for streamlining background
359 screening processes and sharing background screening
360 information.
361 (1) The interagency workgroup shall be coordinated through
362 the Agency for Health Care Administration and shall include
363 representatives from each of the state agencies required to
364 create the workgroup.
365 (2) The interagency workgroup shall submit a work plan for
366 implementing a streamlined background screening system to the
367 President of the Senate and the Speaker of the House of
368 Representatives by November 1, 2011.
369 (3) The interagency workgroup work plan shall, at a
370 minimum, address the following:
371 (a) The feasibility of creating a single statewide database
372 that is accessible by all agencies participating on the
373 workgroup.
374 (b) The feasibility of collocating or consolidating current
375 screening processes.
376 (c) Standardized screening criteria.
377 (d) Consistent criminal history information.
378 (e) Centralized exemptions.
379 (f) State and national retention of prints.
380 (g) National rescreens.
381 (h) Responsibility for retained prints and resubmission.
382 (i) Access to information.
383 (j) Fees.
384 (k) Screening turnaround time.
385 (l) The need for cooperative agreements among agencies that
386 may access information.
387 (m) Legal considerations and the need for legislative
388 action necessary for accessing information by participating
389 agencies.
390 (n) Guidelines for how the information shall be accessed,
391 used, and disseminated.
392 (o) The organizational level at which information may be
393 accessed and shared.
394 (p) The specific information to be maintained and shared
395 through the system.
396 (q) Registration of employee information regarding the
397 employment status of persons screened, including date of hire
398 and date of separation, to facilitate notifications of arrests
399 and dispositions to the appropriate provider.
400 (r) The costs of implementing the streamlined system to the
401 state, employers, employees, and volunteers.
402 Section 7. This act shall take effect July 1, 2011.