Florida Senate - 2012                                     SB 320
       
       
       
       By Senator Storms
       
       
       
       
       10-00270-12                                            2012320__
    1                        A bill to be entitled                      
    2         An act relating to background screening; amending s.
    3         394.4572, F.S.; providing that mental health personnel
    4         working in a facility licensed under ch. 395, F.S.,
    5         who work on an intermittent basis for less than 15
    6         hours per week of direct, face-to-face contact with
    7         patients are exempt from the fingerprinting and
    8         screening requirements; providing an exception;
    9         amending s. 409.1757, F.S.; adding law enforcement
   10         officers who have a good moral character to the list
   11         of professionals who are not required to be
   12         refingerprinted or rescreened; amending s. 430.0402,
   13         F.S.; including volunteers within the definition of
   14         the term “direct service provider” for purposes of
   15         required background screening; exempting a volunteer
   16         who meets certain criteria and a client’s relative or
   17         spouse from the screening requirement; excepting
   18         certain licensed professionals and persons screened as
   19         a licensure requirement from further screening under
   20         certain circumstances; requiring direct service
   21         providers working as of a certain date to be screened
   22         within a specified period; providing a phase-in for
   23         screening direct service providers; requiring that
   24         employers of direct service providers and certain
   25         other individuals be rescreened every 5 years unless
   26         fingerprints are retained electronically by the
   27         Department of Law Enforcement; removing an offense
   28         from the list of disqualifying offenses for purposes
   29         of background screening; amending s. 435.04, F.S.;
   30         requiring vendors who submit fingerprints on behalf of
   31         employers to meet specified criteria; requiring that
   32         fingerprints be retained for any person screened by a
   33         certain date; amending s. 435.06, F.S.; authorizing an
   34         employer to hire an employee to a position that
   35         otherwise requires background screening before the
   36         completion of the screening process for the purpose of
   37         training the employee; prohibiting the employee from
   38         having direct contact with vulnerable persons until
   39         the screening process is complete; amending s. 435.07,
   40         F.S.; providing that personnel of a qualified entity
   41         as defined in ch. 943, F.S., may apply for an
   42         exemption from screening; amending s. 408.809, F.S.;
   43         eliminating a rule that requires the Agency for Health
   44         Care Administration to stagger rescreening schedules;
   45         providing a rescreening schedule; amending s. 464.203,
   46         F.S.; requiring the Board of Nursing to waive
   47         background screening requirements for certain
   48         certified nursing assistants; requiring the
   49         establishment of a statewide interagency workgroup
   50         relating to statewide background screening procedures
   51         and information sharing; providing for membership;
   52         requiring the workgroup to submit a report to the
   53         Legislature by a specified date; setting forth the
   54         topics that, at a minimum, the workgroup must address
   55         in its work plan; providing an effective date.
   56  
   57  Be It Enacted by the Legislature of the State of Florida:
   58  
   59         Section 1. Paragraph (d) is added to subsection (1) of
   60  section 394.4572, Florida Statutes, to read:
   61         394.4572 Screening of mental health personnel.—
   62         (1)
   63         (d) Mental health personnel working in a facility licensed
   64  under chapter 395 who work on an intermittent basis for less
   65  than 15 hours per week of direct, face-to-face contact with
   66  patients are exempt from the fingerprinting and screening
   67  requirements, except that persons working in a mental health
   68  facility where the primary purpose of the facility is the mental
   69  health treatment of minors must be fingerprinted and meet
   70  screening requirements.
   71         Section 2. Section 409.1757, Florida Statutes, is amended
   72  to read:
   73         409.1757 Persons not required to be refingerprinted or
   74  rescreened.—Any provision of law to the contrary
   75  notwithstanding, human resource personnel who have been
   76  fingerprinted or screened pursuant to chapters 393, 394, 397,
   77  402, and this chapter, and teachers who have been fingerprinted
   78  pursuant to chapter 1012, and law enforcement officers who meet
   79  the requirements of s. 943.13, who have not been unemployed for
   80  more than 90 days thereafter, and who under the penalty of
   81  perjury attest to the completion of such fingerprinting or
   82  screening and to compliance with the provisions of this section
   83  and the standards for good moral character as contained in such
   84  provisions as ss. 110.1127(3), 393.0655(1), 394.457(6), 397.451,
   85  402.305(2), and 409.175(6), and 943.13(7), are shall not be
   86  required to be refingerprinted or rescreened in order to comply
   87  with any caretaker screening or fingerprinting requirements.
   88         Section 3. Section 430.0402, Florida Statutes, is amended
   89  to read:
   90         430.0402 Screening of direct service providers.—
   91         (1)(a) Level 2 background screening pursuant to chapter 435
   92  is required for direct service providers. Background screening
   93  includes employment history checks as provided in s. 435.03(1)
   94  and local criminal records checks through local law enforcement
   95  agencies.
   96         (b) For purposes of this section, the term “direct service
   97  provider” means a person 18 years of age or older, including a
   98  volunteer, who, pursuant to a program to provide services to the
   99  elderly, has direct, face-to-face contact with a client while
  100  providing services to the client and or has access to the
  101  client’s living areas or to the client’s funds or personal
  102  property. The term does not include includes coordinators,
  103  managers, and supervisors of residential facilities and
  104  volunteers who assist on an intermittent basis for less than 20
  105  hours of direct, face-to-face contact with a client per month,
  106  individuals who are related by blood to the client, or the
  107  client’s spouse.
  108         (2) Licensed physicians or, nurses, or other professionals
  109  licensed by the Department of Health, or attorneys in good
  110  standing with The Florida Bar are not subject to background
  111  screening if they are providing a service that is within the
  112  scope of their licensed practice.
  113         (3) Individuals qualified for employment by the Agency for
  114  Health Care Administration pursuant to the agency’s background
  115  screening standards for licensure or employment contained in s.
  116  408.809 are not subject to subsequent or additional Level 2
  117  screening pursuant to chapter 435, or to the unique screening
  118  requirements of this section, by virtue of their employment as a
  119  direct service provider if they are providing a service that is
  120  within the scope of their licensed practice.
  121         (4)(3) Refusal on the part of an employer to dismiss a
  122  manager, supervisor, or direct service provider who has been
  123  found to be in noncompliance with standards of this section
  124  shall result in the automatic denial, termination, or revocation
  125  of the license or certification, rate agreement, purchase order,
  126  or contract, in addition to any other remedies authorized by
  127  law.
  128         (5)Individuals serving as direct service providers on July
  129  31, 2011, must be screened by July 1, 2013. The department may
  130  adopt rules to establish a schedule to stagger the
  131  implementation of the required screening over a 1-year period,
  132  beginning July 1, 2012, through July 1, 2013.
  133         (6)An employer of a direct service provider who previously
  134  qualified for employment or volunteer work under Level 1
  135  screening standards or an individual who is required to be
  136  screened according to the Level 2 screening standards contained
  137  in chapter 435, pursuant to this section, shall be rescreened
  138  every 5 years following the date of his or her last background
  139  screening or exemption, unless such individual’s fingerprints
  140  are continuously retained and monitored by the Department of Law
  141  Enforcement in the federal fingerprint retention program
  142  according to the procedures specified in s. 943.05.
  143         (7)(4) The background screening conducted pursuant to this
  144  section must ensure that, in addition to the disqualifying
  145  offenses listed in s. 435.04, no person subject to the
  146  provisions of this section has an arrest awaiting final
  147  disposition for, has been found guilty of, regardless of
  148  adjudication, or entered a plea of nolo contendere or guilty to,
  149  or has been adjudicated delinquent and the record has not been
  150  sealed or expunged for, any offense prohibited under any of the
  151  following provisions of state law or similar law of another
  152  jurisdiction:
  153         (a) Any authorizing statutes, if the offense was a felony.
  154         (a)(b) Section 409.920, relating to Medicaid provider
  155  fraud.
  156         (b)(c) Section 409.9201, relating to Medicaid fraud.
  157         (c)(d) Section 817.034, relating to fraudulent acts through
  158  mail, wire, radio, electromagnetic, photoelectronic, or
  159  photooptical systems.
  160         (d)(e) Section 817.234, relating to false and fraudulent
  161  insurance claims.
  162         (e)(f) Section 817.505, relating to patient brokering.
  163         (f)(g) Section 817.568, relating to criminal use of
  164  personal identification information.
  165         (g)(h) Section 817.60, relating to obtaining a credit card
  166  through fraudulent means.
  167         (h)(i) Section 817.61, relating to fraudulent use of credit
  168  cards, if the offense was a felony.
  169         (i)(j) Section 831.01, relating to forgery.
  170         (j)(k) Section 831.02, relating to uttering forged
  171  instruments.
  172         (k)(l) Section 831.07, relating to forging bank bills,
  173  checks, drafts, or promissory notes.
  174         (l)(m) Section 831.09, relating to uttering forged bank
  175  bills, checks, drafts, or promissory notes.
  176         Section 4. Paragraph (e) is added to subsection (1) of
  177  section 435.04, Florida Statutes, and subsection (4) is added to
  178  that section, to read:
  179         435.04 Level 2 screening standards.—
  180         (1)
  181         (e) Vendors who submit fingerprints on behalf of employers
  182  must:
  183         1. Use technology that is compliant with systems used by
  184  the Department of Law Enforcement; and
  185         2. Have the ability to communicate electronically with the
  186  state agency accepting screening results from the Department of
  187  Law Enforcement.
  188         (4) Fingerprints required for screening under this section
  189  shall be retained for any person who is screened on or after
  190  July 1, 2014.
  191         Section 5. Paragraph (d) is added to subsection (2) of
  192  section 435.06, Florida Statutes, to read:
  193         435.06 Exclusion from employment.—
  194         (2)
  195         (d) An employer may hire an employee to a position that
  196  requires background screening before the employee completes the
  197  screening process for training and orientation purposes.
  198  However, the employee may not have direct contact with
  199  vulnerable persons until the screening process is completed and
  200  the employee demonstrates that he or she exhibits no behaviors
  201  that warrant the denial or termination of employment.
  202         Section 6. Subsection (6) is added to section 435.07,
  203  Florida Statutes, to read:
  204         435.07 Exemptions from disqualification.—Unless otherwise
  205  provided by law, the provisions of this section apply to
  206  exemptions from disqualification for disqualifying offenses
  207  revealed pursuant to background screenings required under this
  208  chapter, regardless of whether those disqualifying offenses are
  209  listed in this chapter or other laws.
  210         (6) Personnel of a qualified entity as described in s.
  211  943.0542, who are required to be screened pursuant to s. 435.04,
  212  may apply for an exemption pursuant to this chapter.
  213         Section 7. Section 408.809, Florida Statutes, is amended to
  214  read:
  215         408.809 Background screening; prohibited offenses.—
  216         (1) Level 2 background screening pursuant to chapter 435
  217  must be conducted through the agency on each of the following
  218  persons, who are considered employees for the purposes of
  219  conducting screening under chapter 435:
  220         (a) The licensee, if an individual.
  221         (b) The administrator or a similarly titled person who is
  222  responsible for the day-to-day operation of the provider.
  223         (c) The financial officer or similarly titled individual
  224  who is responsible for the financial operation of the licensee
  225  or provider.
  226         (d) Any person who is a controlling interest if the agency
  227  has reason to believe that such person has been convicted of any
  228  offense prohibited by s. 435.04. For each controlling interest
  229  who has been convicted of any such offense, the licensee shall
  230  submit to the agency a description and explanation of the
  231  conviction at the time of license application.
  232         (e) Any person, as required by authorizing statutes,
  233  seeking employment with a licensee or provider who is expected
  234  to, or whose responsibilities may require him or her to, provide
  235  personal care or services directly to clients or have access to
  236  client funds, personal property, or living areas; and any
  237  person, as required by authorizing statutes, contracting with a
  238  licensee or provider whose responsibilities require him or her
  239  to provide personal care or personal services directly to
  240  clients. Evidence of contractor screening may be retained by the
  241  contractor’s employer or the licensee.
  242         (2) Every 5 years following his or her licensure,
  243  employment, or entry into a contract in a capacity that under
  244  subsection (1) would require level 2 background screening under
  245  chapter 435, each such person must submit to level 2 background
  246  rescreening as a condition of retaining such license or
  247  continuing in such employment or contractual status. For any
  248  such rescreening, the agency shall request the Department of Law
  249  Enforcement to forward the person’s fingerprints to the Federal
  250  Bureau of Investigation for a national criminal history record
  251  check. If the fingerprints of such a person are not retained by
  252  the Department of Law Enforcement under s. 943.05(2)(g), the
  253  person must file a complete set of fingerprints with the agency
  254  and the agency shall forward the fingerprints to the Department
  255  of Law Enforcement for state processing, and the Department of
  256  Law Enforcement shall forward the fingerprints to the Federal
  257  Bureau of Investigation for a national criminal history record
  258  check. The fingerprints may be retained by the Department of Law
  259  Enforcement under s. 943.05(2)(g). The cost of the state and
  260  national criminal history records checks required by level 2
  261  screening may be borne by the licensee or the person
  262  fingerprinted. Proof of compliance with level 2 screening
  263  standards submitted within the previous 5 years to meet any
  264  provider or professional licensure requirements of the agency,
  265  the Department of Health, the Agency for Persons with
  266  Disabilities, the Department of Children and Family Services, or
  267  the Department of Financial Services for an applicant for a
  268  certificate of authority or provisional certificate of authority
  269  to operate a continuing care retirement community under chapter
  270  651 satisfies the requirements of this section if the person
  271  subject to screening has not been unemployed for more than 90
  272  days and such proof is accompanied, under penalty of perjury, by
  273  an affidavit of compliance with the provisions of chapter 435
  274  and this section using forms provided by the agency.
  275         (3) All fingerprints must be provided in electronic format.
  276  Screening results shall be reviewed by the agency with respect
  277  to the offenses specified in s. 435.04 and this section, and the
  278  qualifying or disqualifying status of the person named in the
  279  request shall be maintained in a database. The qualifying or
  280  disqualifying status of the person named in the request shall be
  281  posted on a secure website for retrieval by the licensee or
  282  designated agent on the licensee’s behalf.
  283         (4) In addition to the offenses listed in s. 435.04, all
  284  persons required to undergo background screening pursuant to
  285  this part or authorizing statutes must not have an arrest
  286  awaiting final disposition for, must not have been found guilty
  287  of, regardless of adjudication, or entered a plea of nolo
  288  contendere or guilty to, and must not have been adjudicated
  289  delinquent and the record not have been sealed or expunged for
  290  any of the following offenses or any similar offense of another
  291  jurisdiction:
  292         (a) Any authorizing statutes, if the offense was a felony.
  293         (b) This chapter, if the offense was a felony.
  294         (c) Section 409.920, relating to Medicaid provider fraud.
  295         (d) Section 409.9201, relating to Medicaid fraud.
  296         (e) Section 741.28, relating to domestic violence.
  297         (f) Section 817.034, relating to fraudulent acts through
  298  mail, wire, radio, electromagnetic, photoelectronic, or
  299  photooptical systems.
  300         (g) Section 817.234, relating to false and fraudulent
  301  insurance claims.
  302         (h) Section 817.505, relating to patient brokering.
  303         (i) Section 817.568, relating to criminal use of personal
  304  identification information.
  305         (j) Section 817.60, relating to obtaining a credit card
  306  through fraudulent means.
  307         (k) Section 817.61, relating to fraudulent use of credit
  308  cards, if the offense was a felony.
  309         (l) Section 831.01, relating to forgery.
  310         (m) Section 831.02, relating to uttering forged
  311  instruments.
  312         (n) Section 831.07, relating to forging bank bills, checks,
  313  drafts, or promissory notes.
  314         (o) Section 831.09, relating to uttering forged bank bills,
  315  checks, drafts, or promissory notes.
  316         (p) Section 831.30, relating to fraud in obtaining
  317  medicinal drugs.
  318         (q) Section 831.31, relating to the sale, manufacture,
  319  delivery, or possession with the intent to sell, manufacture, or
  320  deliver any counterfeit controlled substance, if the offense was
  321  a felony.
  322         (5) A person who serves as a controlling interest of, is
  323  employed by, or contracts with a licensee on July 31, 2010, who
  324  has been screened and qualified according to standards specified
  325  in s. 435.03 or s. 435.04 must be rescreened by July 31, 2015 in
  326  compliance with the following schedule. The agency may adopt
  327  rules to establish a schedule to stagger the implementation of
  328  the required rescreening over the 5-year period, beginning July
  329  31, 2010, through July 31, 2015. If, upon rescreening, such
  330  person has a disqualifying offense that was not a disqualifying
  331  offense at the time of the last screening, but is a current
  332  disqualifying offense and was committed before the last
  333  screening, he or she may apply for an exemption from the
  334  appropriate licensing agency and, if agreed to by the employer,
  335  may continue to perform his or her duties until the licensing
  336  agency renders a decision on the application for exemption if
  337  the person is eligible to apply for an exemption and the
  338  exemption request is received by the agency within 30 days after
  339  receipt of the rescreening results by the person. The
  340  rescreening schedule shall be:
  341         (a) Individuals for whom the last screening was conducted
  342  on or before December 31, 2004, must be rescreened by July 31,
  343  2014.
  344         (b) Individuals for whom the last screening conducted was
  345  between January 1, 2005, and December 31, 2008, must be
  346  rescreened by July 31, 2015.
  347         (c) Individuals for whom the last screening conducted was
  348  between January 1, 2009, through July 31, 2011, must be
  349  rescreened by July 31, 2016.
  350         (6)(5) The costs associated with obtaining the required
  351  screening must be borne by the licensee or the person subject to
  352  screening. Licensees may reimburse persons for these costs. The
  353  Department of Law Enforcement shall charge the agency for
  354  screening pursuant to s. 943.053(3). The agency shall establish
  355  a schedule of fees to cover the costs of screening.
  356         (7)(6)(a) As provided in chapter 435, the agency may grant
  357  an exemption from disqualification to a person who is subject to
  358  this section and who:
  359         1. Does not have an active professional license or
  360  certification from the Department of Health; or
  361         2. Has an active professional license or certification from
  362  the Department of Health but is not providing a service within
  363  the scope of that license or certification.
  364         (b) As provided in chapter 435, the appropriate regulatory
  365  board within the Department of Health, or the department itself
  366  if there is no board, may grant an exemption from
  367  disqualification to a person who is subject to this section and
  368  who has received a professional license or certification from
  369  the Department of Health or a regulatory board within that
  370  department and that person is providing a service within the
  371  scope of his or her licensed or certified practice.
  372         (8)(7) The agency and the Department of Health may adopt
  373  rules pursuant to ss. 120.536(1) and 120.54 to implement this
  374  section, chapter 435, and authorizing statutes requiring
  375  background screening and to implement and adopt criteria
  376  relating to retaining fingerprints pursuant to s. 943.05(2).
  377         (9)(8) There is no unemployment compensation or other
  378  monetary liability on the part of, and no cause of action for
  379  damages arising against, an employer that, upon notice of a
  380  disqualifying offense listed under chapter 435 or this section,
  381  terminates the person against whom the report was issued,
  382  whether or not that person has filed for an exemption with the
  383  Department of Health or the agency.
  384         Section 8. Subsection (1) of section 464.203, Florida
  385  Statutes, is amended to read:
  386         464.203 Certified nursing assistants; certification
  387  requirement.—
  388         (1) The board shall issue a certificate to practice as a
  389  certified nursing assistant to any person who demonstrates a
  390  minimum competency to read and write and successfully passes the
  391  required background screening pursuant to s. 400.215. If the
  392  person has successfully passed the required background screening
  393  pursuant to s. 400.215 or s. 408.809 within 90 days before
  394  applying for a certificate to practice, the board shall waive
  395  the requirement that the applicant successfully pass an
  396  additional background screening pursuant to s. 400.215. The
  397  person must also meet and meets one of the following
  398  requirements:
  399         (a) Has successfully completed an approved training program
  400  and achieved a minimum score, established by rule of the board,
  401  on the nursing assistant competency examination, which consists
  402  of a written portion and skills-demonstration portion approved
  403  by the board and administered at a site and by personnel
  404  approved by the department.
  405         (b) Has achieved a minimum score, established by rule of
  406  the board, on the nursing assistant competency examination,
  407  which consists of a written portion and skills-demonstration
  408  portion, approved by the board and administered at a site and by
  409  personnel approved by the department and:
  410         1. Has a high school diploma, or its equivalent; or
  411         2. Is at least 18 years of age.
  412         (c) Is currently certified in another state; is listed on
  413  that state’s certified nursing assistant registry; and has not
  414  been found to have committed abuse, neglect, or exploitation in
  415  that state.
  416         (d) Has completed the curriculum developed by the
  417  Department of Education and achieved a minimum score,
  418  established by rule of the board, on the nursing assistant
  419  competency examination, which consists of a written portion and
  420  skills-demonstration portion, approved by the board and
  421  administered at a site and by personnel approved by the
  422  department.
  423         Section 9. The Department of Children and Family Services,
  424  the Agency for Health Care Administration, the Department of
  425  Elderly Affairs, the Department of Health, the Agency for
  426  Persons with Disabilities, the Department of Juvenile Justice,
  427  and the Department of Law Enforcement shall create a statewide
  428  interagency background screening workgroup for the purpose of
  429  developing a work plan for implementing a statewide system for
  430  streamlining background screening processes and sharing
  431  background screening information.
  432         (1) The interagency workgroup shall be coordinated through
  433  the Agency for Health Care Administration and shall include
  434  representatives from each of the state agencies required to
  435  create the workgroup.
  436         (2) The interagency workgroup shall submit a work plan for
  437  implementing a streamlined background screening system to the
  438  President of the Senate and the Speaker of the House of
  439  Representatives by November 1, 2012.
  440         (3) The interagency workgroup work plan shall, at a
  441  minimum, address the following:
  442         (a) The feasibility of creating a single statewide database
  443  that is accessible by all agencies participating on the
  444  workgroup.
  445         (b) The feasibility of collocating or consolidating current
  446  screening processes.
  447         (c) Standardized screening criteria.
  448         (d) Consistent criminal history information.
  449         (e) Centralized exemptions.
  450         (f) State and national retention of prints.
  451         (g) National rescreens.
  452         (h) Responsibility for retained prints and resubmission.
  453         (i) Access to information.
  454         (j) Fees.
  455         (k) Screening turnaround time.
  456         (l) The need for cooperative agreements among agencies that
  457  may access information.
  458         (m) Legal considerations and the need for legislative
  459  action necessary for accessing information by participating
  460  agencies.
  461         (n) Guidelines for how the information shall be accessed,
  462  used, and disseminated.
  463         (o) The organizational level at which information may be
  464  accessed and shared.
  465         (p) The specific information to be maintained and shared
  466  through the system.
  467         (q) Registration of employee information regarding the
  468  employment status of persons screened, including date of hire
  469  and date of separation, to facilitate notifications of arrests
  470  and dispositions to the appropriate provider.
  471         (r) The costs of implementing the streamlined system to the
  472  state, employers, employees, and volunteers.
  473         Section 10. This act shall take effect July 1, 2012.