Florida Senate - 2011 SB 1264
By Senator Wise
5-01048A-11 20111264__
1 A bill to be entitled
2 An act relating to background screening; amending s.
3 413.20, F.S.; defining the term “direct service
4 provider” for purposes of services provided to the
5 Division of Vocational Rehabilitation of the
6 Department of Education; amending s. 413.208, F.S.;
7 requiring direct service providers to participate in
8 level 2 background screening as a condition for
9 certification to serve clients of vocational
10 rehabilitation; specifying which persons are required
11 to undergo level 2 screening; prohibiting persons for
12 whom background screening is required from having
13 contact with any vulnerable person until the screening
14 process is completed; providing for a temporary
15 exception; requiring rescreening during a specified
16 time period; identifying the criminal offenses the
17 commission of which disqualifies a person from serving
18 vulnerable persons; requiring that the cost of
19 criminal history records checks be borne by the direct
20 service provider or the person seeking certification;
21 authorizing the division to deny, suspend, reject,
22 terminate, or revoke the certification or other
23 agreement of a person who fails to meet the criteria
24 of the screening; requiring the division to provide
25 written notification to the person affected if the
26 division has reasonable cause to believe that grounds
27 for denial or termination of certification exist;
28 providing penalties if an employer does not dismiss an
29 employee who is not compliant with the screening
30 standards; creating s. 413.2105, F.S.; directing the
31 division to require all employees and applicants for
32 employment to undergo personnel screening and security
33 background investigations using the level 2 standards;
34 creating s. 1001.12, F.S.; requiring all employees of
35 the Department of Education, and applicants being
36 considered for employment at the department, to submit
37 to level 2 background screening; authorizing a
38 temporary exemption from disqualification; amending s.
39 1005.02, F.S.; defining the term “admissions staff”
40 for purposes of provisions governing nonpublic
41 postsecondary educational institutions; amending s.
42 1005.22, F.S.; requiring the Commission for
43 Independent Education to investigate the criminal
44 justice information history for certain persons
45 applying for a license or license renewal; amending s.
46 1005.31, F.S.; requiring the commission to establish
47 minimum standards required of admissions staff
48 employed by institutions under the commission’s
49 jurisdiction; amending s. 1005.38, F.S.; authorizing
50 the commission to deny or fail to reissue a license if
51 the person has been a party to a civil action or has
52 been convicted of, or entered a plea of guilty or nolo
53 contendere to, certain crimes; creating s. 1012.02,
54 F.S.; directing the Department of Education to require
55 level 2 background screening for all personnel of all
56 contractors required to perform contractual duties at
57 a facility of the department, local school board
58 facility, or any other location, if the person will
59 have access to confidential data or have contact with
60 vulnerable persons; requiring contractors to meet
61 specified criteria; requiring that contractors be
62 rescreened every 5 years; authorizing the department
63 to deny, suspend, terminate, or revoke the license of
64 a contractor who fails to satisfy the screening
65 standards; authorizing the department to grant a
66 temporary disqualification exemption under limited
67 circumstances; amending ss. 413.407 and 744.1083,
68 F.S.; conforming cross-references; providing an
69 effective date.
70
71
72 Be It Enacted by the Legislature of the State of Florida:
73
74 Section 1. Present subsections (7) through (26) of section
75 413.20, Florida Statutes, are renumbered as subsections (8)
76 through (27), respectively, and a new subsection (7) is added to
77 that section, to read:
78 413.20 Definitions.—As used in this part, the term:
79 (7) “Direct service provider” means an entity and its
80 associated individuals who, directly or indirectly, provide
81 employment services, supported employment services, independent
82 living services, self-employment services, personal assistance
83 services, vocational evaluation or tutorial services, or
84 rehabilitation technology services to vulnerable persons, as
85 defined in s. 435.02.
86 Section 2. Section 413.208, Florida Statutes, is amended to
87 read:
88 413.208 Service providers; quality assurance; and fitness
89 for responsibilities; and background screening.—
90 (1) DIRECT SERVICE PROVIDERS.—The Division of Vocational
91 Rehabilitation shall certify vendors who are direct service
92 providers of direct service and ensure that they maintain an
93 internal system of quality assurance, have proven functional
94 systems, and are subject to a due-diligence inquiry as to their
95 fitness to undertake service responsibilities, regardless of
96 whether a contract for services is procured competitively or
97 noncompetitively.
98 (2) BACKGROUND SCREENING; PROHIBITED OFFENSES.—
99 (a) As a condition of certification, the division shall
100 require level 2 background screening of direct service providers
101 pursuant to s. 435.04.
102 (b) If the direct service provider is a contractor or
103 operates under an agreement with the division, the division
104 shall require a level 2 background screening of:
105 1. The administrator or a similarly titled person who is
106 responsible for the day-to-day operation of the direct service
107 provider.
108 2. The financial officer or similarly titled individual who
109 is responsible for the financial operation of the direct service
110 provider.
111 3. Any person offered employment with a direct service
112 provider who is expected to, or whose responsibilities may
113 require him or her to, provide services directly or indirectly
114 to vulnerable persons, as defined in s. 435.02.
115 4. Directors of direct service providers.
116 (c) A person for whom background screening is required
117 pursuant to this section may not have contact with any
118 vulnerable person until the screening process is completed and
119 he or she demonstrates the absence of any grounds for denial of
120 qualification or, in the presence of such grounds, an exemption
121 from disqualification is granted. Upon request, the division may
122 grant a temporary exception to this requirement upon a showing
123 of good cause.
124 (d) Employers of direct service providers and direct
125 service providers are responsible for initiating and completing
126 the security background investigation as a condition of
127 certification.
128 (e) Every 5 years following initial screening, each person
129 must submit to level 2 background rescreening as a condition of
130 eligibility for recertification. Proof of compliance with level
131 2 screening standards submitted within the previous 5 years
132 satisfies the requirements of this section if such proof is
133 accompanied, under penalty of perjury, by an affidavit of
134 compliance with the provisions of chapter 435 and this section
135 using forms acceptable to the division.
136 (f) The background screening conducted under this section
137 must ensure that, in addition to the disqualifying offenses
138 listed in s. 435.04, a person subject to this section does not
139 have an arrest awaiting final disposition, has not been found
140 guilty of, regardless of adjudication, entered a plea of nolo
141 contendere or guilty to, or has not been adjudicated delinquent,
142 and the record has not been sealed or expunged, for any offense
143 prohibited under any of the following provisions of state law or
144 similar law of another jurisdiction:
145 1. Section 409.920, relating to Medicaid provider fraud.
146 2. Section 409.9201, relating to Medicaid fraud.
147 3. Section 741.28, relating to domestic violence.
148 4. Section 817.034, relating to fraudulent acts through
149 mail, wire, radio, electromagnetic, photoelectronic, or
150 photooptical systems.
151 5. Section 817.234, relating to false and fraudulent
152 insurance claims.
153 6. Section 817.505, relating to patient brokering.
154 7. Section 817.568, relating to criminal use of personal
155 identification information.
156 8. Section 817.60, relating to obtaining a credit card
157 through fraudulent means.
158 9. Section 817.61, relating to fraudulent use of credit
159 cards, if the offense was a felony.
160 10. Section 831.01, relating to forgery.
161 11. Section 831.02, relating to uttering forged
162 instruments.
163 12. Section 831.07, relating to forging bank bills, checks,
164 drafts, or promissory notes.
165 13. Section 831.09, relating to uttering forged bank bills,
166 checks, drafts, or promissory notes.
167 14. Section 831.31, relating to the sale, manufacture,
168 delivery, or possession with the intent to sell, manufacture, or
169 deliver any counterfeit controlled substance, if the offense was
170 a felony.
171 (3) PAYMENT FOR PROCESSING OF FINGERPRINTS AND STATE
172 CRIMINAL RECORDS CHECKS.—The cost of the state and national
173 criminal history records checks required by level 2 screening
174 shall be borne by the direct service provider or the person
175 seeking certification.
176 (4) TERMINATION; HEARINGS PROVIDED.—
177 (a) The division shall deny, suspend, terminate, or revoke
178 a certification, rate agreement, purchase order, referral,
179 contract, or other agreement, or pursue other remedies in
180 addition to or in lieu of denial, suspension, termination, or
181 revocation, for failure to comply with this section.
182 (b) If the division has reasonable cause to believe that
183 grounds for denial or termination of certification exist, it
184 shall provide written notification to the person affected,
185 identifying the specific record that indicates noncompliance
186 with the standards in this section.
187 (c) As provided in chapter 435, the division may grant an
188 exemption from disqualification from this section only as
189 provided in s. 435.07.
190 (d) Refusal on the part of a contractor to dismiss an
191 employee who has been found to be in noncompliance with
192 standards of this section shall result in revocation of the
193 contractor’s certification and contract.
194 Section 3. Section 413.2105, Florida Statutes, is created
195 to read:
196 413.2105 Employment screening.—The division shall require
197 all employees and applicants for employment to undergo personnel
198 screening and security background investigations as provided in
199 chapter 435, using the level 2 standards for screening set forth
200 in that chapter, as a condition of employment and continued
201 employment.
202 Section 4. Section 1001.12, Florida Statutes, is created to
203 read:
204 1001.12 Background screening of employees.—
205 (1) The department shall require level 2 background
206 screening pursuant to s. 435.04 for all of its employees and
207 applicants being considered for employment. All department
208 employees and applicants being considered for employment must
209 meet level 2 screening standards as provided in s. 435.04 before
210 employment and as a condition of continued employment.
211 (2) As provided in chapter 435, the division may grant an
212 exemption from disqualification from this section only as
213 provided in s. 435.07.
214 Section 5. Present subsections (2) through (16) of section
215 1005.02, Florida Statutes, are renumbered as subsections (3)
216 through (17), respectively, and a new subsection (2) is added to
217 that section, to read:
218 1005.02 Definitions.—As used in this chapter, the term:
219 (2) “Admissions staff” means any person, including the
220 admissions director, who is employed by an independent
221 postsecondary educational institution, or by an out-of-state
222 independent postsecondary educational institution under the
223 jurisdiction of the Commission for Independent Education, and
224 who provides information or advises prospective students in
225 order to secure an application or accepts payment of fees from
226 prospective students for the institution.
227 Section 6. Paragraph (h) of subsection (1) of section
228 1005.22, Florida Statutes, is amended to read:
229 1005.22 Powers and duties of commission.—
230 (1) The commission shall:
231 (h) Cause to be investigated criminal justice information,
232 as defined in s. 943.045, for each owner, administrator,
233 admissions director and staff, and agent employed by an
234 institution applying for licensure or licensure renewal from the
235 commission.
236 Section 7. Subsection (16) is added to section 1005.31,
237 Florida Statutes, to read:
238 1005.31 Licensure of institutions.—
239 (16) The commission shall establish minimum standards for
240 admissions staff employed by institutions under its
241 jurisdiction. The commission may adopt rules to ensure that
242 admissions staff at institutions meet these standards and uphold
243 the intent of this chapter. A member of an institution’s
244 admissions staff may not solicit prospective students in this
245 state for enrollment in any independent postsecondary
246 educational institution or in any out-of-state independent
247 postsecondary educational institution unless the institution has
248 received a license as prescribed by the commission.
249 Section 8. Present subsections (3) through (12) of section
250 1005.38, Florida Statutes, are renumbered as subsections (4)
251 through (13), respectively, present subsection (4) of that
252 section is amended, and a new subsection (3) is added to that
253 section, to read:
254 1005.38 Actions against a licensee and other penalties.—
255 (3) The commission may refuse to grant an institutional
256 license, renew an existing institutional license, or revoke an
257 existing institutional license if any applicant, owner,
258 director, administrator, registered agent, admissions director,
259 or admissions staff member has been a party to a civil action or
260 has been convicted of, or entered a plea of guilty or nolo
261 contendere to, a crime under chapter 817 or fraudulent practices
262 or fair consumer practices under s. 1005.04.
263 (a) A criminal or civil act committed in another state or
264 under federal law which, if committed in this state, would
265 constitute an offense is an offense prohibited under this
266 subsection.
267 (b) The commission shall review each applicant individually
268 and may grant or renew a license if good cause is shown.
269 (c) The grounds for refusal or revocation of a license
270 shall be applied to any disqualifying criminal or civil history
271 regardless of the date of the commission of the underlying
272 event. This subsection shall be applied retroactively and
273 prospectively
274 (5)(4) The commission may deny an application for any
275 operating status if the commission determines that the applicant
276 or its owners, officers, directors, or administrators, or
277 admissions staff were previously operating an institution in
278 this state or in another state or jurisdiction in a manner
279 contrary to the health, education, or welfare of the public. The
280 commission may consider factors such as the previous denial or
281 revocation of an institutional license; prior criminal or civil
282 administrative proceedings regarding the operation and
283 management of an institution; other types of criminal
284 proceedings involving fraud, deceit, dishonesty, or moral
285 turpitude; failure of the institution to be properly closed,
286 including completing the training or providing for the trainout
287 of its students; and failure to issue appropriate refunds. The
288 commission may require an applicant or its owners, officers,
289 directors, or administrators, or admissions staff to provide the
290 commission with information under oath regarding the prior
291 operation of an institution and to provide criminal justice
292 information, the cost of which must be borne by the applicant in
293 addition to license fees.
294 Section 9. Section 1012.02, Florida Statutes, is created to
295 read:
296 1012.02 Background screening of contractors.—
297 (1) The department shall require level 2 background
298 screening pursuant to s. 435.04 for all personnel of all
299 contractors required to perform contractual duties at a facility
300 of the department, local school board facility, or any other
301 location if the person will have access to confidential data or
302 may come into contact with vulnerable persons, as defined in s.
303 435.02.
304 (2) A contractor for whom background screening is required
305 pursuant to this section may not use any employee to perform any
306 duties that are covered by subsection (1) until the screening
307 process is completed and the contractor demonstrates the absence
308 of any grounds for disqualification or, in the presence of such
309 grounds, an exemption from disqualification is granted.
310 (3) A contractor for whom background screening is required
311 pursuant to this section is responsible for initiating and
312 completing the security background investigation. The costs of
313 the state and national criminal history records checks required
314 by level 2 screening shall be borne by the contractor.
315 (4) Every 5 years following initial screening, each
316 contractor must submit to level 2 background rescreening.
317 (5) The background screening conducted under this section
318 must ensure that, in addition to the disqualifying offenses
319 listed in s. 435.04, a person subject to the provisions of this
320 section does not have an arrest awaiting final disposition, has
321 not been found guilty of, regardless of adjudication, entered a
322 plea of nolo contendere or guilty to, or has not been
323 adjudicated delinquent, and the record has not been sealed or
324 expunged, for any offense prohibited under any of the following
325 provisions of state law or similar law of another jurisdiction:
326 (a) Section 409.920, relating to Medicaid provider fraud.
327 (b) Section 409.9201, relating to Medicaid fraud.
328 (c) Section 741.28, relating to domestic violence.
329 (d) Section 817.034, relating to fraudulent acts through
330 mail, wire, radio, electromagnetic, photoelectronic, or
331 photooptical systems.
332 (e) Section 817.234, relating to false and fraudulent
333 insurance claims.
334 (f) Section 817.505, relating to patient brokering.
335 (g) Section 817.568, relating to criminal use of personal
336 identification information.
337 (h) Section 817.60, relating to obtaining a credit card
338 through fraudulent means.
339 (i) Section 817.61, relating to fraudulent use of credit
340 cards, if the offense was a felony.
341 (j) Section 831.01, relating to forgery.
342 (k) Section 831.02, relating to uttering forged
343 instruments.
344 (l) Section 831.07, relating to forging bank bills, checks,
345 drafts, or promissory notes.
346 (m) Section 831.09, relating to uttering forged bank bills,
347 checks, drafts, or promissory notes.
348 (n) Section 831.31, relating to the sale, manufacture,
349 delivery, or possession with the intent to sell, manufacture, or
350 deliver any counterfeit controlled substance, if the offense was
351 a felony.
352 (6)(a) The department shall deny, suspend, terminate, or
353 revoke a contract, or pursue other remedies in addition to or in
354 lieu of denial, suspension, termination, or termination, for
355 failure to comply with this section.
356 (b) If the department has reasonable cause to believe that
357 grounds for denial, suspension, or termination exist, it shall
358 provide written notification to the person affected, identifying
359 the specific record that indicates noncompliance with the
360 standards in this section.
361 (c) As provided in chapter 435, the department may grant an
362 exemption from disqualification from this section only as
363 provided in s. 435.07.
364 (d) Refusal on the part of an employing contractor to
365 dismiss an employee who has been found to be in noncompliance
366 with the standards of this section shall result in revocation of
367 the employer’s contract.
368 Section 10. Paragraph (c) of subsection (1) of section
369 413.407, Florida Statutes, is amended to read:
370 413.407 Assistive Technology Advisory Council.—There is
371 created the Assistive Technology Advisory Council, responsible
372 for ensuring consumer involvement in the creation, application,
373 and distribution of technology-related assistance to and for
374 persons who have disabilities. The council shall fulfill its
375 responsibilities through statewide policy development, both
376 state and federal legislative initiatives, advocacy at both the
377 state and federal level, planning of statewide resource
378 allocations, policy-level management, reviews of both consumer
379 responsiveness and the adequacy of program service delivery, and
380 by performing the functions listed in this section.
381 (1)
382 (c) A majority of council members shall be persons who have
383 disabilities as defined in s. 413.20(8) s. 413.20(7) who are
384 also consumers of assistive technology or family members of such
385 persons.
386 Section 11. Subsection (10) of section 744.1083, Florida
387 Statutes, is amended to read:
388 744.1083 Professional guardian registration.—
389 (10) A state college or university or an independent
390 college or university that is located and chartered in Florida,
391 that is accredited by the Commission on Colleges of the Southern
392 Association of Colleges and Schools or the Accrediting Council
393 for Independent Colleges and Schools, and that confers degrees
394 as defined in s. 1005.02(8) s. 1005.02(7) may, but is not
395 required to, register as a professional guardian under this
396 section. If a state college or university or independent college
397 or university elects to register as a professional guardian
398 under this subsection, the requirements of subsections (3) and
399 (4) do not apply and the registration must include only the
400 name, address, and employer identification number of the
401 registrant.
402 Section 12. This act shall take effect July 1, 2011.