CS/HB 7233

1
A bill to be entitled
2An act relating to background screening; amending s.
3394.4572, F.S.; exempting certain mental health personnel
4from background screening requirements; amending s.
5408.809, F.S.; revising provisions relating to background
6screening of specified employees of health care providers;
7removing a provision authorizing the Agency for Health
8Care Administration to adopt rules establishing a
9rescreening schedule; establishing a rescreening schedule;
10amending s. 409.1757, F.S.; exempting certain law
11enforcement officers from refingerprinting and rescreening
12requirements under certain conditions; amending s.
13430.0402, F.S.; revising the definition of the term
14"direct service provider" for purposes of background
15screening requirements; exempting a volunteer who meets
16certain criteria, a client's relative or spouse, and an
17attorney in good standing with The Florida Bar from
18screening requirements; exempting persons screened as a
19licensure requirement from further screening under certain
20circumstances; requiring direct service providers working
21as of a certain date to be screened within a specified
22period; providing a phase-in for screening direct service
23providers; providing rulemaking authority to the
24Department of Elderly Affairs to implement the phase-in;
25requiring that employers of direct service providers and
26certain other individuals be rescreened every 5 years
27unless fingerprints are retained electronically by the
28Department of Law Enforcement; removing an offense from
29the list of disqualifying offenses for purposes of
30background screening; amending s. 435.04, F.S.; providing
31requirements for vendors who submit fingerprints on behalf
32of employers; amending s. 435.07, F.S.; preserving
33exemptions under certain circumstances; authorizing
34personnel of qualified entities to apply for an exemption;
35amending s. 464.203, F.S.; requiring the Board of Nursing
36to waive background screening requirements for certain
37certified nursing assistants; requiring certain state
38agencies to evaluate barriers to efficient background
39screening and issue recommendations to the Governor and
40Legislature; providing an effective date.
41
42Be It Enacted by the Legislature of the State of Florida:
43
44     Section 1.  Paragraph (d) is added to subsection (1) of
45section 394.4572, Florida Statutes, to read:
46     394.4572  Screening of mental health personnel.-
47     (1)
48     (d)  Mental health personnel employed by a facility
49licensed under chapter 395 who have less than 15 hours per week
50of direct contact with patients are exempt from the
51fingerprinting and screening requirements.
52     Section 2.  Subsections (5) through (8) of section 408.809,
53Florida Statutes, are renumbered as subsections (6) through (9),
54respectively, and subsection (4) of that section is amended to
55read:
56     408.809  Background screening; prohibited offenses.-
57     (4)  In addition to the offenses listed in s. 435.04, all
58persons required to undergo background screening pursuant to
59this part or authorizing statutes must not have an arrest
60awaiting final disposition for, must not have been found guilty
61of, regardless of adjudication, or entered a plea of nolo
62contendere or guilty to, and must not have been adjudicated
63delinquent and the record not have been sealed or expunged for
64any of the following offenses or any similar offense of another
65jurisdiction:
66     (a)  Any authorizing statutes, if the offense was a felony.
67     (b)  This chapter, if the offense was a felony.
68     (c)  Section 409.920, relating to Medicaid provider fraud.
69     (d)  Section 409.9201, relating to Medicaid fraud.
70     (e)  Section 741.28, relating to domestic violence.
71     (f)  Section 817.034, relating to fraudulent acts through
72mail, wire, radio, electromagnetic, photoelectronic, or
73photooptical systems.
74     (g)  Section 817.234, relating to false and fraudulent
75insurance claims.
76     (h)  Section 817.505, relating to patient brokering.
77     (i)  Section 817.568, relating to criminal use of personal
78identification information.
79     (j)  Section 817.60, relating to obtaining a credit card
80through fraudulent means.
81     (k)  Section 817.61, relating to fraudulent use of credit
82cards, if the offense was a felony.
83     (l)  Section 831.01, relating to forgery.
84     (m)  Section 831.02, relating to uttering forged
85instruments.
86     (n)  Section 831.07, relating to forging bank bills,
87checks, drafts, or promissory notes.
88     (o)  Section 831.09, relating to uttering forged bank
89bills, checks, drafts, or promissory notes.
90     (p)  Section 831.30, relating to fraud in obtaining
91medicinal drugs.
92     (q)  Section 831.31, relating to the sale, manufacture,
93delivery, or possession with the intent to sell, manufacture, or
94deliver any counterfeit controlled substance, if the offense was
95a felony.
96     (5)  A person who serves as a controlling interest of, is
97employed by, or contracts with a licensee on July 31, 2010, who
98has been screened and qualified according to standards specified
99in s. 435.03 or s. 435.04 must be rescreened by July 31, 2015,
100in accordance with the schedule provided in this subsection. The
101agency may adopt rules to establish a schedule to stagger the
102implementation of the required rescreening over the 5-year
103period, beginning July 31, 2010, through July 31, 2015. If, upon
104rescreening, such person has a disqualifying offense that was
105not a disqualifying offense at the time of the last screening,
106but is a current disqualifying offense and was committed before
107the last screening, he or she may apply for an exemption from
108the appropriate licensing agency and, if agreed to by the
109employer, may continue to perform his or her duties until the
110licensing agency renders a decision on the application for
111exemption if the person is eligible to apply for an exemption
112and the exemption request is received by the agency within 30
113days after receipt of the rescreening results by the person. The
114rescreening schedule shall be as follows:
115     (a)  A person whose last screening was conducted before
116December 31, 2003, must be rescreened by July 31, 2013.
117     (b)  A person whose last screening was conducted between
118January 1, 2004, through December 31, 2007, must be rescreened
119by July 31, 2014.
120     (c)  A person whose last screening was conducted between
121January 1, 2008, through July 31, 2010, must be rescreened by
122July 31, 2015.
123     Section 3.  Section 409.1757, Florida Statutes, is amended
124to read:
125     409.1757  Persons not required to be refingerprinted or
126rescreened.-Any provision of law to the contrary
127notwithstanding, human resource personnel who have been
128fingerprinted or screened pursuant to chapters 393, 394, 397,
129402, and this chapter, and teachers who have been fingerprinted
130pursuant to chapter 1012, who have not been unemployed for more
131than 90 days thereafter, and law enforcement officers, as
132defined in s. 943.10(1), who hold an active certification from
133the Criminal Justice Standards and Training Commission, and who
134under the penalty of perjury attest to the completion of such
135fingerprinting or screening and to compliance with the
136provisions of this section and the standards for good moral
137character as contained in such provisions as ss. 110.1127(3),
138393.0655(1), 394.457(6), 397.451, 402.305(2), and 409.175(6),
139and 943.13(7) shall not be required to be refingerprinted or
140rescreened in order to comply with any caretaker screening or
141fingerprinting requirements.
142     Section 4.  Section 430.0402, Florida Statutes, is amended
143to read:
144     430.0402  Screening of direct service providers.-
145     (1)(a)  Level 2 background screening pursuant to chapter
146435 is required for direct service providers. Background
147screening includes employment history checks as provided in s.
148435.03(1) and local criminal records checks through local law
149enforcement agencies.
150     (b)  For purposes of this section, the term "direct service
151provider" means a person 18 years of age or older, including a
152volunteer, who, pursuant to a program to provide services to the
153elderly, has direct, face-to-face contact with a client while
154providing services to the client and or has access to the
155client's living areas or to the client's funds or personal
156property. The term does not include a volunteer who assists on
157an intermittent basis for less than 20 hours per month of
158direct, face-to-face contact with a client, an individual who is
159related by blood to a client, or a client's spouse includes
160coordinators, managers, and supervisors of residential
161facilities and volunteers.
162     (2)  Licensed physicians or, nurses, or other professionals
163licensed by the Department of Health, or attorneys in good
164standing with The Florida Bar are not subject to background
165screening if they are providing a service that is within the
166scope of their licensed practice.
167     (3)  Individuals qualified for employment by the Agency for
168Health Care Administration pursuant to the agency's background
169screening standards for licensure or employment contained in s.
170408.809 are not subject to subsequent or additional level 2
171screening pursuant to chapter 435, or to the unique screening
172requirements of this section, by virtue of their employment as
173direct service providers if they are providing a service that is
174within the scope of their licensed practice.
175     (4)(3)  Refusal on the part of an employer to dismiss a
176manager, supervisor, or direct service provider who has been
177found to be in noncompliance with standards of this section
178shall result in the automatic denial, termination, or revocation
179of the license or certification, rate agreement, purchase order,
180or contract, in addition to any other remedies authorized by
181law.
182     (5)  Individuals serving as direct service providers on
183July 31, 2010, must be screened by July 1, 2012. The department
184may adopt rules to establish a schedule to stagger the
185implementation of the required screening over a 1-year period,
186beginning July 1, 2011, through July 1, 2012.
187     (6)  An employer of a direct service provider who
188previously qualified for employment or volunteer work under
189level 1 screening standards or an individual who is required to
190be screened according to level 2 screening standards contained
191in chapter 435, pursuant to this section, shall be rescreened
192every 5 years following the date of his or her last background
193screening or exemption, unless such individual's fingerprints
194are continuously retained and monitored by the Department of Law
195Enforcement in the federal fingerprint retention program
196according to the procedures specified in s. 943.05.
197     (7)(4)  The background screening conducted pursuant to this
198section must ensure that, in addition to the disqualifying
199offenses listed in s. 435.04, no person subject to the
200provisions of this section has an arrest awaiting final
201disposition for, has been found guilty of, regardless of
202adjudication, or entered a plea of nolo contendere or guilty to,
203or has been adjudicated delinquent and the record has not been
204sealed or expunged for, any offense prohibited under any of the
205following provisions of state law or similar law of another
206jurisdiction:
207     (a)  Any authorizing statutes, if the offense was a felony.
208     (a)(b)  Section 409.920, relating to Medicaid provider
209fraud.
210     (b)(c)  Section 409.9201, relating to Medicaid fraud.
211     (c)(d)  Section 817.034, relating to fraudulent acts
212through mail, wire, radio, electromagnetic, photoelectronic, or
213photooptical systems.
214     (d)(e)  Section 817.234, relating to false and fraudulent
215insurance claims.
216     (e)(f)  Section 817.505, relating to patient brokering.
217     (f)(g)  Section 817.568, relating to criminal use of
218personal identification information.
219     (g)(h)  Section 817.60, relating to obtaining a credit card
220through fraudulent means.
221     (h)(i)  Section 817.61, relating to fraudulent use of
222credit cards, if the offense was a felony.
223     (i)(j)  Section 831.01, relating to forgery.
224     (j)(k)  Section 831.02, relating to uttering forged
225instruments.
226     (k)(l)  Section 831.07, relating to forging bank bills,
227checks, drafts, or promissory notes.
228     (l)(m)  Section 831.09, relating to uttering forged bank
229bills, checks, drafts, or promissory notes.
230     Section 5.  Paragraph (e) is added to subsection (1) of
231section 435.04, Florida Statutes, to read:
232     435.04  Level 2 screening standards.-
233     (1)
234     (e)  Vendors submitting fingerprints on behalf of employers
235must:
236     1.  Use technology that is compliant with systems used by
237the Department of Law Enforcement.
238     2.  Be able to communicate electronically with the state
239agency accepting screening results from the Department of Law
240Enforcement.
241     3.  Capture two sets of fingerprint images for each
242individual. The first set of fingerprints shall be sent to the
243Department of Law Enforcement, and the second set shall be
244retained by the vendor for at least 60 days. If the first set of
245fingerprints is deemed illegible by the Department of Law
246Enforcement or the Federal Bureau of Investigation, the vendor
247shall submit the second set of fingerprints upon notification
248from the agency.
249     Section 6.  Subsections (6) and (7) are added to section
250435.07, Florida Statutes, to read:
251     435.07  Exemptions from disqualification.-Unless otherwise
252provided by law, the provisions of this section apply to
253exemptions from disqualification for disqualifying offenses
254revealed pursuant to background screenings required under this
255chapter, regardless of whether those disqualifying offenses are
256listed in this chapter or other laws.
257     (6)  Exemptions granted by agencies remain valid through
258subsequent level 1 or level 2 screenings with the same agency
259that granted the exemption, if the person has no new or
260additional offenses identified through subsequent screenings and
261is otherwise qualified for the exemption. The issuing agency is
262responsible for communicating the continued eligibility for
263employment.
264     (7)  Personnel of a qualified entity as defined in s.
265943.0542 who are required to be screened pursuant to s. 435.04
266may apply for an exemption pursuant to this section and this
267chapter.
268     Section 7.  Subsection (1) of section 464.203, Florida
269Statutes, is amended to read:
270     464.203  Certified nursing assistants; certification
271requirement.-
272     (1)  The board shall issue a certificate to practice as a
273certified nursing assistant to any person who demonstrates a
274minimum competency to read and write and successfully passes the
275required background screening pursuant to s. 400.215. If the
276person has successfully passed the required background screening
277pursuant to s. 400.215 or s. 408.809 within 90 days before the
278application for a certificate to practice, the board shall waive
279the requirement that the applicant successfully pass an
280additional background screening pursuant to s. 400.215. The
281person must also meet and meets one of the following
282requirements:
283     (a)  Has successfully completed an approved training
284program and achieved a minimum score, established by rule of the
285board, on the nursing assistant competency examination, which
286consists of a written portion and skills-demonstration portion
287approved by the board and administered at a site and by
288personnel approved by the department.
289     (b)  Has achieved a minimum score, established by rule of
290the board, on the nursing assistant competency examination,
291which consists of a written portion and skills-demonstration
292portion, approved by the board and administered at a site and by
293personnel approved by the department and:
294     1.  Has a high school diploma, or its equivalent; or
295     2.  Is at least 18 years of age.
296     (c)  Is currently certified in another state; is listed on
297that state's certified nursing assistant registry; and has not
298been found to have committed abuse, neglect, or exploitation in
299that state.
300     (d)  Has completed the curriculum developed under the
301Enterprise Florida Jobs and Education Partnership Grant and
302achieved a minimum score, established by rule of the board, on
303the nursing assistant competency examination, which consists of
304a written portion and skills-demonstration portion, approved by
305the board and administered at a site and by personnel approved
306by the department.
307     Section 8.  The Agency for Health Care Administration, the
308Department of Law Enforcement, the Department of Children and
309Family Services, the Department of Elderly Affairs, the
310Department of Health, and the Agency for Persons with
311Disabilities, working in consultation and coordination with one
312another, shall evaluate state and federal regulations that pose
313barriers to efficient background screening for persons working
314or volunteering with vulnerable populations and issue
315recommendations to the Governor, the President of the Senate,
316and the Speaker of the House of Representatives by November 1,
3172011, regarding findings and possible statutory amendments
318necessary to eliminate duplicative screening and improve
319processing time for screening requests.
320     Section 9.  This act shall take effect July 1, 2011.


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