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DEPARTMENT OF HEALTH
NOTICE OF PROPOSED RULEMAKING
The Director of the Department of Health, pursuant to the authority set forth under
the Health-Care Facility Unlicensed Personnel Criminal Background Check Act of 1998, effective April 20, 1999, as amended by the Health-Care Facility Unlicensed Personnel Criminal Background Check Amendment Act of 2002, effective April 13, 2002 (D.C. Laws 12-238 and 14-98; D.C. Official Code §§ 44-551, et seq.), hereby gives notice of his intent to take final rulemaking action to adopt the following amendment to Chapter 47 of Title 22 of the District of Columbia Municipal Regulations (DCMR) in not less than thirty (30) days after the date of publication of this notice in the D.C. Register.
The purpose of these amendments is to require all applicants for employment, or persons who will have direct access to patients, to undergo a Metropolitan Police Department – Federal Bureau of Investigation background check prior to employment. In addition employees will be required to undergo a subsequent check every four (4) years from the date of the previous check and, the amendments will define the term “direct patient access.”
Chapter 47, “Health-Care Facility Unlicensed Personnel Criminal Background Checks,” of Subtitle B, “Public Health and Medicine,” of Title 22 is amended as follows:
Section 4701, “Background Check Requirement,” is amended by amending Subsections 4701.2 through 4701.8 to read as follows:
4701.2 Commencing October 1, 2010, each facility shall cause each applicant for employment who shall have direct patient access or person who shall have direct patient access, to undergo a criminal background check in conjunction with the Health Regulation and Licensing Administration, and in accordance with Metropolitan Police Department (MPD) and Federal Bureau of Investigations (FBI) policies and procedures in an FBI approved environment, by means of fingerprint and National Criminal Information Center checks and procedures. The results of the criminal background check shall be forwarded to the Health Regulation and Licensing Administration.
4701.3 The FBI criminal background check shall disclose the criminal history, if any, of the prospective applicant for the previous seven (7) years prior to the check, in all jurisdictions within which the applicant or person who shall have direct patient access, has worked or resided. The Metropolitan Police Department shall conduct a criminal background
check that shall disclose misdemeanor violations, if any, of District law.
4701.4 An employee shall be required to undergo a subsequent criminal background check every four (4) years from the date of the previous
background check.
4701.5 A facility may offer to employ or use the contract services of an unlicensed person provided that within a forty-five (45) day period
immediately preceding the date of employment or commencement of
contract services the following has occurred:
(a) The applicant for employment or person contracted to provide services has undergone a criminal background check pursuant to §§ 4701.1, 4701.2, and 4701.3;
(b) The Health Regulation and Licensing Administration verifies that
person has not been convicted, within the seven (7) years prior to the criminal background check, of any of the offenses listed in
§ 4705.1;
(c) The Health Regulation and Licensing Administration and the
facility verify by means of a check, that the person’s name is
not on the Nurse Abuse Registry; and
(d) The person provides a sworn statement affirming that there are no
criminal matters pending against the person.
4701.6 Any person who makes a false statement, concerning any material matter, on a sworn statement required by these rules shall be subject to
prosecution.
4701.7 Nothing in the section shall prohibit a facility from requiring, in a contract
agreement, that the criminal background checks for contract workers be obtained by the contractor in conjunction with the Health Regulation and Licensing Administration in compliance with §§ 4701.1, 4701.2, and 4701.3.
4701.8 Failure by a facility to obtain such a contract agreement shall not be a
defense to a charge of non-compliance with the Act or with these rules.
Section 4702, “Fees,” is amended by amending Subsection 4702.1 is to read as follows:
4702.1 In order to obtain the criminal background check, the facility shall pay the fee that is established for the applicant, employee, or person provided contract work to have the criminal background check performed by MPD and the FBI.
Section 4799, “Definitions,” is amended by amending Subsection 4799.1 is as follows:
For the purposes of this chapter the following term shall have the meaning ascribed:
Direct patient access – means any individual who has access to a patient or resident of a long-term care facility, or provider through employment or through a contract with such facility or provider and has duties that involve, or may involve, one-on-one contact with a patient or resident or the facility or provider. Examples of direct patient access employees include, but are not limited to, nursing, housekeeping, dietary, pharmacy, and administrative staff. However, the term does not include a volunteer unless the volunteer has duties that are equivalent to the duties of a direct patient access employee and those duties involve, or may involve, one-on-one contact with a patient or resident of the long-term care facility or provider.
All persons desiring to comment on the subject of this proposed rulemaking should file comments, in writing, no later than thirty (30) days after the date of the publication of this notice in the D.C. Register. Comments should be sent to the Department of Health, Office of the General Counsel, 825 North Capitol Street, N.E., 4th Floor, Washington, D.C. 20002. Copies of the proposed rules may be obtained from the Department at the same address during the hours of 9 a.m. to 5 p.m., Monday through Friday, excluding holidays.
