HB 943

1
A bill to be entitled
2An act relating to background screening; amending s.
3394.4572, F.S.; providing that mental health personnel
4working in a facility licensed under ch. 395, F.S.,
5who work on an intermittent basis for less than 15
6hours per week of direct, face-to-face contact with
7patients are exempt from the fingerprinting and
8screening requirements; providing an exception;
9amending s. 409.1757, F.S.; adding law enforcement
10officers who have a good moral character to the list
11of professionals who are not required to be
12refingerprinted or rescreened; amending s. 430.0402,
13F.S.; including volunteers within the definition of
14the term "direct service provider" for purposes of
15required background screening; exempting a volunteer
16who meets certain criteria and a client's relative or
17spouse from the screening requirement; excepting
18certain licensed professionals and persons screened as
19a licensure requirement from further screening under
20certain circumstances; requiring direct service
21providers working as of a certain date to be screened
22within a specified period; providing a phase-in for
23screening direct service providers; requiring that
24employers of direct service providers and certain
25other individuals be rescreened every 5 years unless
26fingerprints are retained electronically by the
27Department of Law Enforcement; removing an offense
28from the list of disqualifying offenses for purposes
29of background screening; amending s. 435.04, F.S.;
30requiring vendors who submit fingerprints on behalf of
31employers to meet specified criteria; requiring that
32fingerprints be retained for any person screened by a
33certain date; amending s. 435.06, F.S.; authorizing an
34employer to hire an employee to a position that
35otherwise requires background screening before the
36completion of the screening process for the purpose of
37training the employee; prohibiting the employee from
38having direct contact with vulnerable persons until
39the screening process is complete; amending s. 435.07,
40F.S.; providing that personnel of a qualified entity
41as defined in ch. 943, F.S., may apply for an
42exemption from screening; amending s. 408.809, F.S.;
43eliminating a rule that requires the Agency for Health
44Care Administration to stagger rescreening schedules;
45providing a rescreening schedule; amending s. 464.203,
46F.S.; requiring the Board of Nursing to waive
47background screening requirements for certain
48certified nursing assistants; requiring the
49establishment of a statewide interagency workgroup
50relating to statewide background screening procedures
51and information sharing; providing for membership;
52requiring the workgroup to submit a report to the
53Legislature by a specified date; setting forth the
54topics that, at a minimum, the workgroup must address
55in its work plan; providing an effective date.
56
57Be It Enacted by the Legislature of the State of Florida:
58
59     Section 1.  Paragraph (d) is added to subsection (1) of
60section 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
64under chapter 395 who work on an intermittent basis for less
65than 15 hours per week of direct, face-to-face contact with
66patients are exempt from the fingerprinting and screening
67requirements, except that persons working in a mental health
68facility where the primary purpose of the facility is the mental
69health treatment of minors must be fingerprinted and meet
70screening requirements.
71     Section 2.  Section 409.1757, Florida Statutes, is amended
72to read:
73     409.1757  Persons not required to be refingerprinted or
74rescreened.-Any provision of law to the contrary
75notwithstanding, human resource personnel who have been
76fingerprinted or screened pursuant to chapters 393, 394, 397,
77402, and this chapter, and teachers who have been fingerprinted
78pursuant to chapter 1012, and law enforcement officers who meet
79the requirements of s. 943.13, who have not been unemployed for
80more than 90 days thereafter, and who under the penalty of
81perjury attest to the completion of such fingerprinting or
82screening and to compliance with the provisions of this section
83and the standards for good moral character as contained in such
84provisions as ss. 110.1127(3), 393.0655(1), 394.457(6), 397.451,
85402.305(2), and 409.175(6), and 943.13(7), are shall not be
86required to be refingerprinted or rescreened in order to comply
87with any caretaker screening or fingerprinting requirements.
88     Section 3.  Section 430.0402, Florida Statutes, is amended
89to read:
90     430.0402  Screening of direct service providers.-
91     (1)(a)  Level 2 background screening pursuant to chapter
92435 is required for direct service providers. Background
93screening includes employment history checks as provided in s.
94435.03(1) and local criminal records checks through local law
95enforcement agencies.
96     (b)  For purposes of this section, the term "direct service
97provider" means a person 18 years of age or older, including a
98volunteer, who, pursuant to a program to provide services to the
99elderly, has direct, face-to-face contact with a client while
100providing services to the client and or has access to the
101client's living areas or to the client's funds or personal
102property. The term does not include includes coordinators,
103managers, and supervisors of residential facilities and
104volunteers who assist on an intermittent basis for less than 20
105hours of direct, face-to-face contact with a client per month,
106individuals who are related by blood to the client, or the
107client's spouse.
108     (2)  Licensed physicians or, nurses, or other professionals
109licensed by the Department of Health, or attorneys in good
110standing with The Florida Bar are not subject to background
111screening if they are providing a service that is within the
112scope of their licensed practice.
113     (3)  Individuals qualified for employment by the Agency for
114Health Care Administration pursuant to the agency's background
115screening standards for licensure or employment contained in s.
116408.809 are not subject to subsequent or additional Level 2
117screening pursuant to chapter 435, or to the unique screening
118requirements of this section, by virtue of their employment as a
119direct service provider if they are providing a service that is
120within the scope of their licensed practice.
121     (4)(3)  Refusal on the part of an employer to dismiss a
122manager, supervisor, or direct service provider who has been
123found to be in noncompliance with standards of this section
124shall result in the automatic denial, termination, or revocation
125of the license or certification, rate agreement, purchase order,
126or contract, in addition to any other remedies authorized by
127law.
128     (5)  Individuals serving as direct service providers on
129July 31, 2011, must be screened by July 1, 2013. The department
130may adopt rules to establish a schedule to stagger the
131implementation of the required screening over a 1-year period,
132beginning July 1, 2012, through July 1, 2013.
133     (6)  An employer of a direct service provider who
134previously qualified for employment or volunteer work under
135Level 1 screening standards or an individual who is required to
136be screened according to the Level 2 screening standards
137contained in chapter 435, pursuant to this section, shall be
138rescreened every 5 years following the date of his or her last
139background screening or exemption, unless such individual's
140fingerprints are continuously retained and monitored by the
141Department of Law Enforcement in the federal fingerprint
142retention program according to the procedures specified in s.
143943.05.
144     (7)(4)  The background screening conducted pursuant to this
145section must ensure that, in addition to the disqualifying
146offenses listed in s. 435.04, no person subject to the
147provisions of this section has an arrest awaiting final
148disposition for, has been found guilty of, regardless of
149adjudication, or entered a plea of nolo contendere or guilty to,
150or has been adjudicated delinquent and the record has not been
151sealed or expunged for, any offense prohibited under any of the
152following provisions of state law or similar law of another
153jurisdiction:
154     (a)  Any authorizing statutes, if the offense was a felony.
155     (a)(b)  Section 409.920, relating to Medicaid provider
156fraud.
157     (b)(c)  Section 409.9201, relating to Medicaid fraud.
158     (c)(d)  Section 817.034, relating to fraudulent acts
159through mail, wire, radio, electromagnetic, photoelectronic, or
160photooptical systems.
161     (d)(e)  Section 817.234, relating to false and fraudulent
162insurance claims.
163     (e)(f)  Section 817.505, relating to patient brokering.
164     (f)(g)  Section 817.568, relating to criminal use of
165personal identification information.
166     (g)(h)  Section 817.60, relating to obtaining a credit card
167through fraudulent means.
168     (h)(i)  Section 817.61, relating to fraudulent use of
169credit cards, if the offense was a felony.
170     (i)(j)  Section 831.01, relating to forgery.
171     (j)(k)  Section 831.02, relating to uttering forged
172instruments.
173     (k)(l)  Section 831.07, relating to forging bank bills,
174checks, drafts, or promissory notes.
175     (l)(m)  Section 831.09, relating to uttering forged bank
176bills, checks, drafts, or promissory notes.
177     Section 4.  Paragraph (e) is added to subsection (1) of
178section 435.04, Florida Statutes, and subsection (4) is added to
179that section, to read:
180     435.04  Level 2 screening standards.-
181     (1)
182     (e)  Vendors who submit fingerprints on behalf of employers
183must:
184     1.  Use technology that is compliant with systems used by
185the Department of Law Enforcement; and
186     2.  Have the ability to communicate electronically with the
187state agency accepting screening results from the Department of
188Law Enforcement.
189     (4)  Fingerprints required for screening under this section
190shall be retained for any person who is screened on or after
191July 1, 2014.
192     Section 5.  Paragraph (d) is added to subsection (2) of
193section 435.06, Florida Statutes, to read:
194     435.06  Exclusion from employment.-
195     (2)
196     (d)  An employer may hire an employee to a position that
197requires background screening before the employee completes the
198screening process for training and orientation purposes.
199However, the employee may not have direct contact with
200vulnerable persons until the screening process is completed and
201the employee demonstrates that he or she exhibits no behaviors
202that warrant the denial or termination of employment.
203     Section 6.  Subsection (6) is added to section 435.07,
204Florida Statutes, to read:
205     435.07  Exemptions from disqualification.-Unless otherwise
206provided by law, the provisions of this section apply to
207exemptions from disqualification for disqualifying offenses
208revealed pursuant to background screenings required under this
209chapter, regardless of whether those disqualifying offenses are
210listed in this chapter or other laws.
211     (6)  Personnel of a qualified entity as described in s.
212943.0542, who are required to be screened pursuant to s. 435.04,
213may apply for an exemption pursuant to this chapter.
214     Section 7.  Section 408.809, Florida Statutes, is amended
215to read:
216     408.809  Background screening; prohibited offenses.-
217     (1)  Level 2 background screening pursuant to chapter 435
218must be conducted through the agency on each of the following
219persons, who are considered employees for the purposes of
220conducting screening under chapter 435:
221     (a)  The licensee, if an individual.
222     (b)  The administrator or a similarly titled person who is
223responsible for the day-to-day operation of the provider.
224     (c)  The financial officer or similarly titled individual
225who is responsible for the financial operation of the licensee
226or provider.
227     (d)  Any person who is a controlling interest if the agency
228has reason to believe that such person has been convicted of any
229offense prohibited by s. 435.04. For each controlling interest
230who has been convicted of any such offense, the licensee shall
231submit to the agency a description and explanation of the
232conviction at the time of license application.
233     (e)  Any person, as required by authorizing statutes,
234seeking employment with a licensee or provider who is expected
235to, or whose responsibilities may require him or her to, provide
236personal care or services directly to clients or have access to
237client funds, personal property, or living areas; and any
238person, as required by authorizing statutes, contracting with a
239licensee or provider whose responsibilities require him or her
240to provide personal care or personal services directly to
241clients. Evidence of contractor screening may be retained by the
242contractor's employer or the licensee.
243     (2)  Every 5 years following his or her licensure,
244employment, or entry into a contract in a capacity that under
245subsection (1) would require level 2 background screening under
246chapter 435, each such person must submit to level 2 background
247rescreening as a condition of retaining such license or
248continuing in such employment or contractual status. For any
249such rescreening, the agency shall request the Department of Law
250Enforcement to forward the person's fingerprints to the Federal
251Bureau of Investigation for a national criminal history record
252check. If the fingerprints of such a person are not retained by
253the Department of Law Enforcement under s. 943.05(2)(g), the
254person must file a complete set of fingerprints with the agency
255and the agency shall forward the fingerprints to the Department
256of Law Enforcement for state processing, and the Department of
257Law Enforcement shall forward the fingerprints to the Federal
258Bureau of Investigation for a national criminal history record
259check. The fingerprints may be retained by the Department of Law
260Enforcement under s. 943.05(2)(g). The cost of the state and
261national criminal history records checks required by level 2
262screening may be borne by the licensee or the person
263fingerprinted. Proof of compliance with level 2 screening
264standards submitted within the previous 5 years to meet any
265provider or professional licensure requirements of the agency,
266the Department of Health, the Agency for Persons with
267Disabilities, the Department of Children and Family Services, or
268the Department of Financial Services for an applicant for a
269certificate of authority or provisional certificate of authority
270to operate a continuing care retirement community under chapter
271651 satisfies the requirements of this section if the person
272subject to screening has not been unemployed for more than 90
273days and such proof is accompanied, under penalty of perjury, by
274an affidavit of compliance with the provisions of chapter 435
275and this section using forms provided by the agency.
276     (3)  All fingerprints must be provided in electronic
277format. Screening results shall be reviewed by the agency with
278respect to the offenses specified in s. 435.04 and this section,
279and the qualifying or disqualifying status of the person named
280in the request shall be maintained in a database. The qualifying
281or disqualifying status of the person named in the request shall
282be posted on a secure website for retrieval by the licensee or
283designated agent on the licensee's behalf.
284     (4)  In addition to the offenses listed in s. 435.04, all
285persons required to undergo background screening pursuant to
286this part or authorizing statutes must not have an arrest
287awaiting final disposition for, must not have been found guilty
288of, regardless of adjudication, or entered a plea of nolo
289contendere or guilty to, and must not have been adjudicated
290delinquent and the record not have been sealed or expunged for
291any of the following offenses or any similar offense of another
292jurisdiction:
293     (a)  Any authorizing statutes, if the offense was a felony.
294     (b)  This chapter, if the offense was a felony.
295     (c)  Section 409.920, relating to Medicaid provider fraud.
296     (d)  Section 409.9201, relating to Medicaid fraud.
297     (e)  Section 741.28, relating to domestic violence.
298     (f)  Section 817.034, relating to fraudulent acts through
299mail, wire, radio, electromagnetic, photoelectronic, or
300photooptical systems.
301     (g)  Section 817.234, relating to false and fraudulent
302insurance claims.
303     (h)  Section 817.505, relating to patient brokering.
304     (i)  Section 817.568, relating to criminal use of personal
305identification information.
306     (j)  Section 817.60, relating to obtaining a credit card
307through fraudulent means.
308     (k)  Section 817.61, relating to fraudulent use of credit
309cards, if the offense was a felony.
310     (l)  Section 831.01, relating to forgery.
311     (m)  Section 831.02, relating to uttering forged
312instruments.
313     (n)  Section 831.07, relating to forging bank bills,
314checks, drafts, or promissory notes.
315     (o)  Section 831.09, relating to uttering forged bank
316bills, checks, drafts, or promissory notes.
317     (p)  Section 831.30, relating to fraud in obtaining
318medicinal drugs.
319     (q)  Section 831.31, relating to the sale, manufacture,
320delivery, or possession with the intent to sell, manufacture, or
321deliver any counterfeit controlled substance, if the offense was
322a felony.
323     (5)  A person who serves as a controlling interest of, is
324employed by, or contracts with a licensee on July 31, 2010, who
325has been screened and qualified according to standards specified
326in s. 435.03 or s. 435.04 must be rescreened by July 31, 2015 in
327compliance with the following schedule. The agency may adopt
328rules to establish a schedule to stagger the implementation of
329the required rescreening over the 5-year period, beginning July
33031, 2010, through July 31, 2015. If, upon rescreening, such
331person has a disqualifying offense that was not a disqualifying
332offense at the time of the last screening, but is a current
333disqualifying offense and was committed before the last
334screening, he or she may apply for an exemption from the
335appropriate licensing agency and, if agreed to by the employer,
336may continue to perform his or her duties until the licensing
337agency renders a decision on the application for exemption if
338the person is eligible to apply for an exemption and the
339exemption request is received by the agency within 30 days after
340receipt of the rescreening results by the person. The
341rescreening schedule shall be:
342     (a)  Individuals for whom the last screening was conducted
343on or before December 31, 2004, must be rescreened by July 31,
3442014.
345     (b)  Individuals for whom the last screening conducted was
346between January 1, 2005, and December 31, 2008, must be
347rescreened by July 31, 2015.
348     (c)  Individuals for whom the last screening conducted was
349between January 1, 2009, through July 31, 2011, must be
350rescreened by July 31, 2016.
351     (6)(5)  The costs associated with obtaining the required
352screening must be borne by the licensee or the person subject to
353screening. Licensees may reimburse persons for these costs. The
354Department of Law Enforcement shall charge the agency for
355screening pursuant to s. 943.053(3). The agency shall establish
356a schedule of fees to cover the costs of screening.
357     (7)(6)(a)  As provided in chapter 435, the agency may grant
358an exemption from disqualification to a person who is subject to
359this section and who:
360     1.  Does not have an active professional license or
361certification from the Department of Health; or
362     2.  Has an active professional license or certification
363from the Department of Health but is not providing a service
364within the scope of that license or certification.
365     (b)  As provided in chapter 435, the appropriate regulatory
366board within the Department of Health, or the department itself
367if there is no board, may grant an exemption from
368disqualification to a person who is subject to this section and
369who has received a professional license or certification from
370the Department of Health or a regulatory board within that
371department and that person is providing a service within the
372scope of his or her licensed or certified practice.
373     (8)(7)  The agency and the Department of Health may adopt
374rules pursuant to ss. 120.536(1) and 120.54 to implement this
375section, chapter 435, and authorizing statutes requiring
376background screening and to implement and adopt criteria
377relating to retaining fingerprints pursuant to s. 943.05(2).
378     (9)(8)  There is no unemployment compensation or other
379monetary liability on the part of, and no cause of action for
380damages arising against, an employer that, upon notice of a
381disqualifying offense listed under chapter 435 or this section,
382terminates the person against whom the report was issued,
383whether or not that person has filed for an exemption with the
384Department of Health or the agency.
385     Section 8.  Subsection (1) of section 464.203, Florida
386Statutes, is amended to read:
387     464.203  Certified nursing assistants; certification
388requirement.-
389     (1)  The board shall issue a certificate to practice as a
390certified nursing assistant to any person who demonstrates a
391minimum competency to read and write and successfully passes the
392required background screening pursuant to s. 400.215. If the
393person has successfully passed the required background screening
394pursuant to s. 400.215 or s. 408.809 within 90 days before
395applying for a certificate to practice, the board shall waive
396the requirement that the applicant successfully pass an
397additional background screening pursuant to s. 400.215. The
398person must also meet and meets one of the following
399requirements:
400     (a)  Has successfully completed an approved training
401program and achieved a minimum score, established by rule of the
402board, on the nursing assistant competency examination, which
403consists of a written portion and skills-demonstration portion
404approved by the board and administered at a site and by
405personnel approved by the department.
406     (b)  Has achieved a minimum score, established by rule of
407the board, on the nursing assistant competency examination,
408which consists of a written portion and skills-demonstration
409portion, approved by the board and administered at a site and by
410personnel approved by the department and:
411     1.  Has a high school diploma, or its equivalent; or
412     2.  Is at least 18 years of age.
413     (c)  Is currently certified in another state; is listed on
414that state's certified nursing assistant registry; and has not
415been found to have committed abuse, neglect, or exploitation in
416that state.
417     (d)  Has completed the curriculum developed by the
418Department of Education and achieved a minimum score,
419established by rule of the board, on the nursing assistant
420competency examination, which consists of a written portion and
421skills-demonstration portion, approved by the board and
422administered at a site and by personnel approved by the
423department.
424     Section 9.  The Department of Children and Family Services,
425the Agency for Health Care Administration, the Department of
426Elderly Affairs, the Department of Health, the Agency for
427Persons with Disabilities, the Department of Juvenile Justice,
428and the Department of Law Enforcement shall create a statewide
429interagency background screening workgroup for the purpose of
430developing a work plan for implementing a statewide system for
431streamlining background screening processes and sharing
432background screening information.
433     (1)  The interagency workgroup shall be coordinated through
434the Agency for Health Care Administration and shall include
435representatives from each of the state agencies required to
436create the workgroup.
437     (2)  The interagency workgroup shall submit a work plan for
438implementing a streamlined background screening system to the
439President of the Senate and the Speaker of the House of
440Representatives by November 1, 2012.
441     (3)  The interagency workgroup work plan shall, at a
442minimum, address the following:
443     (a)  The feasibility of creating a single statewide
444database that is accessible by all agencies participating on the
445workgroup.
446     (b)  The feasibility of collocating or consolidating
447current screening processes.
448     (c)  Standardized screening criteria.
449     (d)  Consistent criminal history information.
450     (e)  Centralized exemptions.
451     (f)  State and national retention of prints.
452     (g)  National rescreens.
453     (h)  Responsibility for retained prints and resubmission.
454     (i)  Access to information.
455     (j)  Fees.
456     (k)  Screening turnaround time.
457     (l)  The need for cooperative agreements among agencies
458that may access information.
459     (m)  Legal considerations and the need for legislative
460action necessary for accessing information by participating
461agencies.
462     (n)  Guidelines for how the information shall be accessed,
463used, and disseminated.
464     (o)  The organizational level at which information may be
465accessed and shared.
466     (p)  The specific information to be maintained and shared
467through the system.
468     (q)  Registration of employee information regarding the
469employment status of persons screened, including date of hire
470and date of separation, to facilitate notifications of arrests
471and dispositions to the appropriate provider.
472     (r)  The costs of implementing the streamlined system to
473the state, employers, employees, and volunteers.
474     Section 10.  This act shall take effect July 1, 2012.


CODING: Words stricken are deletions; words underlined are additions.