Florida Senate - 2014                       CS for CS for SB 674
       By the Committees on Criminal Justice; and Health Policy; and
       Senator Bean
       591-03476-14                                           2014674c2
    1                        A bill to be entitled                      
    2         An act relating to background screening; amending s.
    3         322.142, F.S.; authorizing the Department of Highway
    4         Safety and Motor Vehicles to share reproductions of
    5         driver license images with the Department of Health
    6         and the Agency for Health Care Administration for
    7         specified purposes; amending s. 402.301, F.S.;
    8         revising provisions relating to the exemption of
    9         certain membership organizations affiliated with
   10         national organizations from certain child care
   11         facility licensing requirements; requiring a level 2
   12         background screening for an employee of such a
   13         facility under certain circumstances; amending s.
   14         408.806, F.S.; revising the requirements for health
   15         care licensure; revising a provision requiring an
   16         affidavit; amending s. 408.809, F.S.; exempting a
   17         person whose fingerprints are already enrolled in a
   18         specified Federal Bureau of Investigation program from
   19         the requirement that such fingerprints be forwarded to
   20         the bureau; requiring certain persons to submit their
   21         fingerprints electronically; requiring the Department
   22         of Law Enforcement to retain fingerprints when the
   23         department begins participation in a certain program;
   24         revising requirements for proof of compliance with
   25         level 2 screening standards; revising terminology;
   26         adding additional disqualifying offenses to background
   27         screening requirements; adding an exemption clause
   28         from disqualification for new offenses; amending s.
   29         413.208, F.S.; providing applicability for background
   30         screening requirements for certain registrants;
   31         repealing s. 7 of chapter 2012-73, Laws of Florida,
   32         relating to background screening requirements;
   33         amending s. 435.04, F.S.; revising information
   34         required for vendors submitting employee fingerprints;
   35         adding an additional disqualifying offense to
   36         background screening requirements; amending s. 435.05,
   37         F.S.; revising a provision requiring the annual
   38         submission of an affidavit; amending s. 435.07, F.S.;
   39         revising criteria for an exemption from
   40         disqualification for an employee under certain
   41         conditions; amending s. 435.12, F.S.; requiring the
   42         fingerprints of an employee required to be screened by
   43         a specified agency and included in the clearinghouse
   44         also to be retained in the national retained print
   45         arrest notification program at a specified time;
   46         requiring simultaneous submission of a photographic
   47         image and electronic fingerprints to the Care Provider
   48         Background Screening Clearinghouse; requiring an
   49         employer to follow certain criminal history check
   50         procedures and include specified information regarding
   51         referral and registration of an employee for
   52         electronic fingerprinting with the clearinghouse;
   53         providing an effective date.
   55  Be It Enacted by the Legislature of the State of Florida:
   57         Section 1. Subsection (4) of section 322.142, Florida
   58  Statutes, is amended to read:
   59         322.142 Color photographic or digital imaged licenses.—
   60         (4) The department may maintain a film negative or print
   61  file. The department shall maintain a record of the digital
   62  image and signature of the licensees, together with other data
   63  required by the department for identification and retrieval.
   64  Reproductions from the file or digital record are exempt from
   65  the provisions of s. 119.07(1) and may shall be made and issued
   66  only:
   67         (a) For departmental administrative purposes;
   68         (b) For the issuance of duplicate licenses;
   69         (c) In response to law enforcement agency requests;
   70         (d) To the Department of Business and Professional
   71  Regulation and the Department of Health pursuant to an
   72  interagency agreement for the purpose of accessing digital
   73  images for reproduction of licenses issued by the Department of
   74  Business and Professional Regulation or the Department of
   75  Health;
   76         (e) To the Department of State pursuant to an interagency
   77  agreement to facilitate determinations of eligibility of voter
   78  registration applicants and registered voters in accordance with
   79  ss. 98.045 and 98.075;
   80         (f) To the Department of Revenue pursuant to an interagency
   81  agreement for use in establishing paternity and establishing,
   82  modifying, or enforcing support obligations in Title IV-D cases;
   83         (g) To the Department of Children and Families pursuant to
   84  an interagency agreement to conduct protective investigations
   85  under part III of chapter 39 and chapter 415;
   86         (h) To the Department of Children and Families pursuant to
   87  an interagency agreement specifying the number of employees in
   88  each of that department’s regions to be granted access to the
   89  records for use as verification of identity to expedite the
   90  determination of eligibility for public assistance and for use
   91  in public assistance fraud investigations;
   92         (i) To the Agency for Health Care Administration pursuant
   93  to an interagency agreement for the purpose of authorized
   94  agencies verifying photographs in the Care Provider Background
   95  Screening Clearinghouse authorized under s. 435.12;
   96         (j)(i) To the Department of Financial Services pursuant to
   97  an interagency agreement to facilitate the location of owners of
   98  unclaimed property, the validation of unclaimed property claims,
   99  and the identification of fraudulent or false claims;
  100         (k)(j) To district medical examiners pursuant to an
  101  interagency agreement for the purpose of identifying a deceased
  102  individual, determining cause of death, and notifying next of
  103  kin of any investigations, including autopsies and other
  104  laboratory examinations, authorized in s. 406.11; or
  105         (l)(k) To the following persons for the purpose of
  106  identifying a person as part of the official work of a court:
  107         1. A justice or judge of this state;
  108         2. An employee of the state courts system who works in a
  109  position that is designated in writing for access by the Chief
  110  Justice of the Supreme Court or a chief judge of a district or
  111  circuit court, or by his or her designee; or
  112         3. A government employee who performs functions on behalf
  113  of the state courts system in a position that is designated in
  114  writing for access by the Chief Justice or a chief judge, or by
  115  his or her designee.
  116         Section 2. Subsection (6) of section 402.301, Florida
  117  Statutes, is amended to read:
  118         402.301 Child care facilities; legislative intent and
  119  declaration of purpose and policy.—It is the legislative intent
  120  to protect the health, safety, and well-being of the children of
  121  the state and to promote their emotional and intellectual
  122  development and care. Toward that end:
  123         (6) Notwithstanding any other provision of law, it is
  124  further the intent of the Legislature that membership
  125  organizations affiliated with national organizations which do
  126  not provide child care as defined in s. 402.302, whose primary
  127  purpose is providing activities that contribute to the
  128  development of good character, after school care, and
  129  delinquency prevention programs which are operated 5 days a week
  130  or more, are facility or school based or good sportsmanship or
  131  to the education or cultural development of minors in this
  132  state, which charge only a nominal annual membership fee, which
  133  are not for profit, and which are certified by their national
  134  associations as being in compliance with the association’s
  135  minimum standards and procedures shall not be considered child
  136  care facilities and therefore are not subject to the licensing
  137  requirements or the minimum standards for child care facilities.
  138  However, upon request, such a facility shall show proof of one
  139  level 2 background screening per screened employee,their
  140  personnel shall not be required to be screened.
  141         Section 3. Subsections (1) and (8) of section 408.806,
  142  Florida Statutes, are amended to read:
  143         408.806 License application process.—
  144         (1) An application for licensure must be made to the agency
  145  on forms furnished by the agency, submitted under oath or
  146  attestation, and accompanied by the appropriate fee in order to
  147  be accepted and considered timely. The application must contain
  148  information required by authorizing statutes and applicable
  149  rules and must include:
  150         (a) The name, address, and social security number, or
  151  individual taxpayer identification number if a social security
  152  number cannot legally be obtained, of:
  153         1. The applicant;
  154         2. The administrator or a similarly titled person who is
  155  responsible for the day-to-day operation of the provider;
  156         3. The financial officer or similarly titled person who is
  157  responsible for the financial operation of the licensee or
  158  provider; and
  159         4. Each controlling interest if the applicant or
  160  controlling interest is an individual.
  161         (b) The name, address, and federal employer identification
  162  number or taxpayer identification number of the applicant and
  163  each controlling interest if the applicant or controlling
  164  interest is not an individual.
  165         (c) The name by which the provider is to be known.
  166         (d) The total number of beds or capacity requested, as
  167  applicable.
  168         (e) The name of the person or persons under whose
  169  management or supervision the provider will operate and the name
  170  of the administrator, if required.
  171         (f) If the applicant offers continuing care agreements as
  172  defined in chapter 651, proof shall be furnished that the
  173  applicant has obtained a certificate of authority as required
  174  for operation under chapter 651.
  175         (g) Other information, including satisfactory inspection
  176  results, that the agency finds necessary to determine the
  177  ability of the applicant to carry out its responsibilities under
  178  this part, authorizing statutes, and applicable rules.
  179         (h) An attestation affidavit, under penalty of perjury, as
  180  required in s. 435.05(3), stating compliance with the provisions
  181  of this section and chapter 435.
  182         (8) The agency may establish procedures for the electronic
  183  notification and submission of required information, including,
  184  but not limited to:
  185         (a) Licensure applications.
  186         (b) Required signatures.
  187         (c) Payment of fees.
  188         (d) Notarization or attestation of applications.
  190  Requirements for electronic submission of any documents required
  191  by this part or authorizing statutes may be established by rule.
  192  As an alternative to sending documents as required by
  193  authorizing statutes, the agency may provide electronic access
  194  to information or documents.
  195         Section 4. Subsections (2) and (4) of section 408.809,
  196  Florida Statutes, are amended to read:
  197         408.809 Background screening; prohibited offenses.—
  198         (2) Every 5 years following his or her licensure,
  199  employment, or entry into a contract in a capacity that under
  200  subsection (1) would require level 2 background screening under
  201  chapter 435, each such person must submit to level 2 background
  202  rescreening as a condition of retaining such license or
  203  continuing in such employment or contractual status. For any
  204  such rescreening, the agency shall request the Department of Law
  205  Enforcement to forward the person’s fingerprints to the Federal
  206  Bureau of Investigation for a national criminal history record
  207  check unless the person’s fingerprints are enrolled in the
  208  Federal Bureau of Investigation’s national retained print arrest
  209  notification program. If the fingerprints of such a person are
  210  not retained by the Department of Law Enforcement under s.
  211  943.05(2)(g) and (h), the person must submit fingerprints
  212  electronically file a complete set of fingerprints with the
  213  agency and the agency shall forward the fingerprints to the
  214  Department of Law Enforcement for state processing, and the
  215  Department of Law Enforcement shall forward the fingerprints to
  216  the Federal Bureau of Investigation for a national criminal
  217  history record check. The fingerprints shall may be retained by
  218  the Department of Law Enforcement under s. 943.05(2)(g) and (h)
  219  and enrolled in the national retained print arrest notification
  220  program when the Department of Law Enforcement begins
  221  participation in the program. The cost of the state and national
  222  criminal history records checks required by level 2 screening
  223  may be borne by the licensee or the person fingerprinted. Until
  224  a specified agency is fully implemented the person’s background
  225  screening results are retained in the clearinghouse created
  226  under s. 435.12, the agency may accept as satisfying the
  227  requirements of this section proof of compliance with level 2
  228  screening standards submitted within the previous 5 years to
  229  meet any provider or professional licensure requirements of the
  230  agency, the Department of Health, the Department of Elderly
  231  Affairs, the Agency for Persons with Disabilities, the
  232  Department of Children and Families Family Services, or the
  233  Department of Financial Services for an applicant for a
  234  certificate of authority or provisional certificate of authority
  235  to operate a continuing care retirement community under chapter
  236  651, provided that:
  237         (a) The screening standards and disqualifying offenses for
  238  the prior screening are equivalent to those specified in s.
  239  435.04 and this section;
  240         (b) The person subject to screening has not had a break in
  241  service from a position that requires level 2 screening for more
  242  than 90 days; and
  243         (c) Such proof is accompanied, under penalty of perjury, by
  244  an attestation affidavit of compliance with the provisions of
  245  chapter 435 and this section using forms provided by the agency.
  246         (4) In addition to the offenses listed in s. 435.04, all
  247  persons required to undergo background screening pursuant to
  248  this part or authorizing statutes must not have an arrest
  249  awaiting final disposition for, must not have been found guilty
  250  of, regardless of adjudication, or entered a plea of nolo
  251  contendere or guilty to, and must not have been adjudicated
  252  delinquent and the record not have been sealed or expunged for
  253  any of the following offenses or any similar offense of another
  254  jurisdiction:
  255         (a) Any authorizing statutes, if the offense was a felony.
  256         (b) This chapter, if the offense was a felony.
  257         (c) Section 409.920, relating to Medicaid provider fraud.
  258         (d) Section 409.9201, relating to Medicaid fraud.
  259         (e) Section 741.28, relating to domestic violence.
  260         (f) Section 777.04, relating to attempts, solicitation, and
  261  conspiracy to commit an offense listed in this subsection.
  262         (g)(f) Section 817.034, relating to fraudulent acts through
  263  mail, wire, radio, electromagnetic, photoelectronic, or
  264  photooptical systems.
  265         (h)(g) Section 817.234, relating to false and fraudulent
  266  insurance claims.
  267         (i) Section 817.481, relating to obtaining goods by using a
  268  false or expired credit card or other credit device, if the
  269  offense was a felony.
  270         (j) Section 817.50, relating to fraudulently obtaining
  271  goods or services from a health care provider.
  272         (k)(h) Section 817.505, relating to patient brokering.
  273         (l)(i) Section 817.568, relating to criminal use of
  274  personal identification information.
  275         (m)(j) Section 817.60, relating to obtaining a credit card
  276  through fraudulent means.
  277         (n)(k) Section 817.61, relating to fraudulent use of credit
  278  cards, if the offense was a felony.
  279         (o)(l) Section 831.01, relating to forgery.
  280         (p)(m) Section 831.02, relating to uttering forged
  281  instruments.
  282         (q)(n) Section 831.07, relating to forging bank bills,
  283  checks, drafts, or promissory notes.
  284         (r)(o) Section 831.09, relating to uttering forged bank
  285  bills, checks, drafts, or promissory notes.
  286         (s)(p) Section 831.30, relating to fraud in obtaining
  287  medicinal drugs.
  288         (t)(q) Section 831.31, relating to the sale, manufacture,
  289  delivery, or possession with the intent to sell, manufacture, or
  290  deliver any counterfeit controlled substance, if the offense was
  291  a felony.
  292         (u) Section 895.03, relating to racketeering and collection
  293  of unlawful debts.
  294         (v) Section 896.101, relating to the Florida Money
  295  Laundering Act.
  297  If, upon rescreening, a person who is currently employed or
  298  contracted with a licensee as of June 30, 2014, and was screened
  299  and qualified under ss. 435.03 and 435.04, has a disqualifying
  300  offense that was not a disqualifying offense at the time of the
  301  last screening, but is a current disqualifying offense and was
  302  committed before the last screening, he or she may apply for an
  303  exemption from the appropriate licensing agency and, if agreed
  304  to by the employer, may continue to perform his or her duties
  305  until the licensing agency renders a decision on the application
  306  for exemption if the person is eligible to apply for an
  307  exemption and the exemption request is received by the agency no
  308  later than 30 days after receipt of the rescreening results by
  309  the person.
  310         Section 5. Subsection (5) is added to section 413.208,
  311  Florida Statutes, to read:
  312         413.208 Service providers; quality assurance; fitness for
  313  responsibilities; background screening.—
  314         (5) The background screening requirements of this section
  315  apply only to registrations entered into or renewed with the
  316  division after the Care Provider Background Screening
  317  Clearinghouse becomes operational and retains the background
  318  screening results in the clearinghouse under s. 435.12.
  319         Section 6. Section 7 of chapter 2012-73, Laws of Florida,
  320  is repealed.
  321         Section 7. Paragraph (e) of subsection (1) of section
  322  435.04, Florida Statutes, is amended, present paragraphs (d)
  323  through (yy) of subsection (2) are redesignated as paragraphs
  324  (e) through (zz), respectively, and a new paragraph (d) is added
  325  to that subsection, to read:
  326         435.04 Level 2 screening standards.—
  327         (1)
  328         (e) Vendors who submit fingerprints on behalf of employers
  329  must:
  330         1. Meet the requirements of s. 943.053; and
  331         2. Have the ability to communicate electronically with the
  332  state agency accepting screening results from the Department of
  333  Law Enforcement and provide the applicant’s full first name,
  334  middle initial, and last name; social security number or
  335  individual taxpayer identification number; date of birth;
  336  mailing address; sex; and race a photograph of the applicant
  337  taken at the time the fingerprints are submitted.
  338         (2) The security background investigations under this
  339  section must ensure that no persons subject to the provisions of
  340  this section have been arrested for and are awaiting final
  341  disposition of, have been found guilty of, regardless of
  342  adjudication, or entered a plea of nolo contendere or guilty to,
  343  or have been adjudicated delinquent and the record has not been
  344  sealed or expunged for, any offense prohibited under any of the
  345  following provisions of state law or similar law of another
  346  jurisdiction:
  347         (d) Section 777.04, relating to attempts, solicitation, and
  348  conspiracy to commit an offense listed in this subsection.
  349         Section 8. Subsection (3) of section 435.05, Florida
  350  Statutes, is amended to read:
  351         435.05 Requirements for covered employees and employers.
  352  Except as otherwise provided by law, the following requirements
  353  apply to covered employees and employers:
  354         (3) Each employer licensed or registered with an agency
  355  must conduct level 2 background screening and must submit to the
  356  agency annually or at the time of license renewal, under penalty
  357  of perjury, a signed attestation affidavit attesting to
  358  compliance with the provisions of this chapter.
  359         Section 9. Subsections (1) and (2) of section 435.07,
  360  Florida Statutes, are amended to read:
  361         435.07 Exemptions from disqualification.—Unless otherwise
  362  provided by law, the provisions of this section apply to
  363  exemptions from disqualification for disqualifying offenses
  364  revealed pursuant to background screenings required under this
  365  chapter, regardless of whether those disqualifying offenses are
  366  listed in this chapter or other laws.
  367         (1)(a) The head of the appropriate agency may grant to any
  368  employee otherwise disqualified from employment an exemption
  369  from disqualification for:
  370         1.(a) Felonies for which at least 3 years have elapsed
  371  since the applicant for the exemption has completed or been
  372  lawfully released from confinement, supervision, or nonmonetary
  373  condition imposed by the court sanction for the disqualifying
  374  felony;
  375         2.(b) Misdemeanors prohibited under any of the statutes
  376  cited in this chapter or under similar statutes of other
  377  jurisdictions for which the applicant for the exemption has
  378  completed or been lawfully released from confinement,
  379  supervision, or nonmonetary condition imposed by the court
  380  sanction;
  381         3.(c) Offenses that were felonies when committed but that
  382  are now misdemeanors and for which the applicant for the
  383  exemption has completed or been lawfully released from
  384  confinement, supervision, or nonmonetary condition imposed by
  385  the court sanction; or
  386         4.(d) Findings of delinquency. For offenses that would be
  387  felonies if committed by an adult and the record has not been
  388  sealed or expunged, the exemption may not be granted until at
  389  least 3 years have elapsed since the applicant for the exemption
  390  has completed or been lawfully released from confinement,
  391  supervision, or nonmonetary condition imposed by the court
  392  sanction for the disqualifying offense.
  393         (b) A person applying for an exemption who was ordered to
  394  pay any amount for any fee, fine, fund, lien, civil judgment,
  395  application, costs of prosecution, trust, or restitution as part
  396  of the judgment and sentence for any disqualifying felony or
  397  misdemeanor must pay the court-ordered amount in full before he
  398  or she is eligible for the exemption.
  400  For the purposes of this subsection, the term “felonies” means
  401  both felonies prohibited under any of the statutes cited in this
  402  chapter or under similar statutes of other jurisdictions.
  403         (2) Persons employed, or applicants for employment, by
  404  treatment providers who treat adolescents 13 years of age and
  405  older who are disqualified from employment solely because of
  406  crimes under s. 817.563, s. 893.13, or s. 893.147 may be
  407  exempted from disqualification from employment pursuant to this
  408  chapter without application of the waiting period in
  409  subparagraph (1)(a)1 paragraph (1)(a).
  410         Section 10. Subsection (2) of section 435.12, Florida
  411  Statutes, is amended to read:
  412         435.12 Care Provider Background Screening Clearinghouse.—
  413         (2)(a) To ensure that the information in the clearinghouse
  414  is current, the fingerprints of an employee required to be
  415  screened by a specified agency and included in the clearinghouse
  416  must be:
  417         1. Retained by the Department of Law Enforcement pursuant
  418  to s. 943.05(2)(g) and (h) and (3), and the Department of Law
  419  Enforcement must report the results of searching those
  420  fingerprints against state incoming arrest fingerprint
  421  submissions to the Agency for Health Care Administration for
  422  inclusion in the clearinghouse.
  423         2. Retained by the Federal Bureau of Investigation in the
  424  national retained print arrest notification program as soon as
  425  the Department of Law Enforcement begins participation in such
  426  program. Arrest prints will be searched against retained prints
  427  at the Federal Bureau of Investigation and notification of
  428  arrests will be forwarded to the Florida Department of Law
  429  Enforcement and reported to the Agency for Health Care
  430  Administration for inclusion in the clearinghouse.
  431         3.2. Resubmitted for a Federal Bureau of Investigation
  432  national criminal history check every 5 years until such time as
  433  the fingerprints are retained by the Federal Bureau of
  434  Investigation.
  435         4.3. Subject to retention on a 5-year renewal basis with
  436  fees collected at the time of initial submission or resubmission
  437  of fingerprints.
  438         5. Submitted with a photograph of the person taken at the
  439  time the fingerprints are submitted.
  440         (b) Until such time as the fingerprints are enrolled in the
  441  national retained print arrest notification program retained at
  442  the Federal Bureau of Investigation, an employee with a break in
  443  service of more than 90 days from a position that requires
  444  screening by a specified agency must submit to a national
  445  screening if the person returns to a position that requires
  446  screening by a specified agency.
  447         (c) An employer of persons subject to screening by a
  448  specified agency must register with the clearinghouse and
  449  maintain the employment status of all employees within the
  450  clearinghouse. Initial employment status and any changes in
  451  status must be reported within 10 business days.
  452         (d) An employer must register with and initiate all
  453  criminal history checks through the clearinghouse before
  454  referring an employee or potential employee for electronic
  455  fingerprint submission to the Department of Law Enforcement. The
  456  registration must include the employee’s full first name, middle
  457  initial, and last name; social security number; date of birth;
  458  mailing address; sex; and race. Individuals, persons,
  459  applicants, and controlling interests that cannot legally obtain
  460  a social security number must provide an individual taxpayer
  461  identification number.
  462         Section 11. This act shall take effect July 1, 2014.