Criminal Background Checks in HealthcareWHAT FLORIDA EMPLOYERS, EMPLOYEES, AND OWNERS NEED TO KNOW.

Licensing & RegulationWHY IS HEALTH CARE SO REGULATED IN FLORIDA?

So What’s the Big Issue?Under Florida Law, health care workers, including ALFs are required to undergo criminal background checks in order to hold employment.

Why does Florida require criminal background checks of health care workers?•Patient safety & security

•Vulnerable populations (elders, children,

disabled, etc.)

•Liability

Florida Statistics

Licensed health care workers – 1,000,000 Other workers – 1,000,000

Total health care workers in FL – 2,000,000

Who Must Undergo Background Check?

•Under Florida Law, health care workers are required to undergo criminal background checks in order to hold employment.

•This applies to:

• Licensed health care professionals;

•Other individuals who work in the health care industry; and

•Owners

WHAT IS THE LAW?

Background Checks are Mandated by Law for Assisted Living Facilities

429.174 Background Screening. – The agency shall require level 2 background screening for personnel as required in section 408.809(1)(e) pursuant to chapter 435 and section 408.809.

Shall = mandatory

Section 408.809, Florida Statutes – Background screening; prohibited offenses.

BACKGROUND SCREENING MUST BE CONDUCTED ON:

• Employees

• The Administrator or person who is responsible for day-to-day operations.

• The Financial Officer or person who is responsible for the financial operations.

• Any person who has a controlling interest in the organization.

• Any person seeking employment with a licensee or provider who is expected to, or whose responsibilities may require him or her to, provide personal care or services directly to clients or have access to client funds, personal property, or living areas; and any person contracting with a licensee or provider whose responsibilities require him or her to provide personal care or personal services directly to clients.

TWO TYPES OF CRIMES:

FelonyA crime for which you can be sentenced to 1 year and 1 day or more of jail time. Considered more serious than a misdemeanor.

MisdemeanorA crime for which punishment is less than 1 year, and a day.

Automatic Disqualification

Disqualification from employment may not be removed from, nor may an exemption be granted to, any person who is a:

• Sexual predator as designated pursuant to section 775.21;

• Career offender pursuant to section 775.261; or

• Sexual offender pursuant to section 943.0435, unless the requirement to register as a sexual offender has been removed pursuant to section 943.04354.

Disqualifying Offenses• Domestic violence offenses (chapter 741)

•Murder (section 782.04)

•Manslaughter (section 782.07)

• Aggravated assault (section 784.021)

• Aggravated battery (section 784.045)

• Kidnapping (section 787.01)

• Luring or enticing a child (section 787.025)

• Removing a minor beyond the state or concealing the location of a minor with criminal intent pending custody proceedings (section 787.04[2])

• Removing a minor beyond the state or concealing the location of a minor with criminal intent pending dependency proceedings or proceedings concerning alleged abuse or neglect of a minor (section 787.04[3])

• Sexual battery (section 794.011)

Disqualifying Offenses (Continued)• Crimes relating to sexual activity with or solicitation of a child by a person in familial or custodial

authority (section 794.041)

• Unlawful sexual activity with certain minors (section 794.05)

• Crimes involving female genital mutilation (section 794.08)

• Arson (section 806.01)

• Incest (section 826.04)

• Child abuse, aggravated child abuse, or neglect of a child (section 827.03)

• Delinquency or dependency of a child (section 827.04)

• Crimes relating to sexual performance by a child (section 827.071)

• Child pornography (chapter 847)

• Sexual misconduct in juvenile justice programs (section 985.701)

• A misdemeanor offense prohibited under any of the following statutes:

• Battery of a minor (section 784.03)

• Luring or enticing a child (section 787.025)

• Child pornography (chapter 847)

Two State Agencies Regulate Healthcare…

Department of Health (DOH)

[Professionals]

Agency for Health Care Administration (AHCA)

[Facilities & Medicaid]

Florida Department of Health

This government agency licenses and regulates 40 health care professions, 7 types of facilities, and 200 types of licenses.

Agency for Health Care Administration

This government agency licenses more than 50 types of health care facilities and runs Florida’s Medicaid program.

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Polk

EscambiaSanta Rosa Okaloosa Walton

Holmes

Washington

Bay

Jackson

Calhoun

GulfFranklin

Liberty

Gadsden

Wakulla

2Leon

Jefferson

Madison

Taylor

Hamilton

Suwannee

Lafayette

ColumbiaBaker

Union

DixieGilchrist

Alachua

LevyMarion

Citrus

Nassau

4Duval

ClaySt Johns

PutnamFlagler

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Lake

Sumter

Hernando

Pasco

Seminole

Orange Brevard

Osceola

Manatee Hardee

DeSoto

Sarasota

Indian River

St. LucieOkeechobee

Highlands

Martin

9Palm Beach

GladesCharlotte

Lee

10 Broward

11Dade

Monroe

Henry

Collier

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5&6 Region 1 - PENSACOLA

850.475.5474

Region 2 - TALLAHASSEE850.414.2832

Region 3 - GAINESVILLE386.418.5330

Region 4 - JACKSONVILLE904.359.6680

Region 5 - ST. PETERSBURG727.552.1145

Region 6 - TAMPA813.873.4777

Region 7 - ORLANDO407.245.0978

Region 8 – FORT MYERS239.338.2621

Region 9 – WEST PALM BEACH561.840.0191

Region 10 – FT. LAUDERDALE954.202.3250

Region 11 – MIAMI305.470.5800

AHCA

What do you do if you have a background

problem?

Don’t Stress!!

There may be a way through this process…

It’s called an Exemption from Disqualification!

Two Types of Letters…

Licensed Professionals:

You must apply to your professional board for an

exemption from disqualification.

Non-Licensed Professionals:

You must apply to Agency for Health Care Administration

(AHCA) for an exemption from disqualification.

Applicant for Employment ALF

Care Provider Background Screening Clearinghouse (“Clearinghouse”)

AHCA Background Screening Website

http://ahca.myflorida.com/MCHQ/Central_Services/Background_Screening/BGS_results.shtml

Form Available at:

http://ahca.myflorida.com/BackgroundScreening

Florida Law States:

• “…the employee must demonstrate by clear and convincing evidence that the employee should not be disqualified from employment. Employees seeking an exemption have the burden of setting forth sufficient evidence of rehabilitation, including, but not limited to, the circumstances surrounding the criminal incident for which an exemption is sought, the time period that has elapsed since the incident, the nature of the harm caused to the victim, and the history of the employee since the incident, or any other evidence or circumstances indicating that the employee will not present a danger if continued employment is allowed…”.  

• Section 435.07(3), Florida Statutes.

Specific factors that the State looks at include:(1) The facts and circumstances surrounding the offense(s);(2) The nature of the harm to the victim;(3) Whether the person is on probation or parole;(4) The length of time since the last offense;(5) The history of the person since the disqualifying offense;(6) Work experience;(7) Personal references;(8) Performance evaluations;(9) Probation or parole violations;(10) Education;(11) Other evidence of rehabilitation;(12) Honesty and candor

Review Process

• These factors are looked at by DOH and AHCA officials to determine whether an individual is fit for employment in the health care industry. 

• If the officials conclude that despite the criminal background history the employee is eligible for employment then a letter is issued granting an “Exemption from Disqualification.”

Exemption Letter

Situation #1 – ALF disciplined for Out of Date Background Check

•Facts: AHCA surveyed ALF. Long time employee was background checked in 2010 according to ALF administrator. Surveyor requested new check. Since 2010, employee had been arrested.

•Violation: Yes- Administrative Complaint filed against the ALF seeking fines and possible license revocation.

•Disposition: Settlement Agreement: reprimand & fine.

Situation #2 – ALF Administrator Wrongly Relied on Information from Employee

•Facts: Employee told Administrator she worked for a private individual and that a background check was performed by individual.

•Violation: Yes- it’s the Administrator’s job to make sure that new employees are background checked.

•Disposition: Reprimand of license, fines, and probation.

Situation #3 – ALF Administrator Wrongly Relied on Information from Employee

•Facts: AHCA does a survey and asks ALF Administrator for a copy of Employee Roster. Surveyor then checks roster against AHCA database and determines there are 3 felons working at facility.

•Violation: Yes- it’s the Administrator’s job to make sure that new employees are background checked.

Situation #4 – Change of Ownership

•Facts: Owner enters into a buy/sell agreement with Buyer to sell ALF. Owner should have mentioned to Buyer the Florida Law requiring Owners and Operators to go through background screening. It turns out Buyer has a criminal record.

•Result: AHCA denies change of ownership.

Final Observations & Recommendations•Regularly review your employee roster.

•Institute a policy that employees and owners must notify management of an arrest or criminal charge.

•Keep up to date on criminal background checks.

•Be aware of deadlines.

•Seek the advice of an experienced health care attorney.

•Keep copies of all past arrest and court records.

•Do not alter or erase records

•Have a strategy for responding. DO NOT IGNORE THE SITUATION!

Jeffrey S. HowellRickey L. Strong

201 S. Monroe St, 4th FloorTallahassee, Florida 32301

850-222-7000www.floridahealthcareattorney.com