1750673 Notice of Second Proposed Rulemaking amending chapter 47, Unlicensed Personnel Criminal Background Check, of subtitle B, Public Health and Medicine, and title 22, Health, of the DCMR
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DEPARTMENT OF HEALTH
NOTICE OF SECOND PROPOSED RULEMAKING
The Director of the Department of Health, pursuant to the authority set forth in section 3 of the Health-Care Facility Unlicensed Personnel Criminal Background Check Act of 1998, effective April 20, 1999 (D.C. Law 12-238; D.C. Official Code §§ 44-552 and 44-554 (2005 Repl.)), hereby gives notice of his intent to take proposed rulemaking action to adopt the following amendments to chapter 47 (Health-Care Facility Unlicensed Personnel Criminal Background Checks) of subtitle B (Public Health and Medicine) of title 22 (Health) 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.
These regulations were previously published in the D.C. Register on October 29, 2010, at 57 DCR 10207. Numerous comments were received from the Health Regulation and Licensing Administration, and are being adopted. They are as follows: the October 1, 2010, commencement date was eliminated; the word “facility” was eliminated and the phrase “long-term facility, acute care facility or other facility including, but not limited to community residence facility, or assisted living facility” as enumerated in D.C. Official Code § 44-501 (2005 Repl. & 2011 Supp.), was substituted to be more definitive and to indicate that those institutions are required to have criminal background checks done on employees or contractors; the criminal background check will no longer be conducted only in a jurisdiction where the applicant has worked or resided but will be done in all fifty (50) states; the check will be done not only by fingerprints submitted but will include live scan submissions; in addition to the Metropolitan Police Department doing the live scan, a private contractor will also be allowed to submit live scans to the Federal Bureau of Investigation (FBI) in order for the FBI to perform a background check; all fingerprinting or live scan must be performed in the District of Columbia; the results of the criminal background check will be submitted to the Department of Health rather than to the Health Regulation and Licensing Administration; instead of a criminal background check being performed at four (4) year intervals there will be no need for an additional check after the initial check if the FBI institutes the “rap back” system; the facility will not be required to pay the cost of the background system but, the cost may be paid by the facility, prospective employee or contract worker; the definition of “direct patient, resident, or client access” is being amended to incorporate those facilities enumerated in D.C. Official § 44-501; a definition is being provided for the term “long-term care facility”; and a definition of the term “rap back” is being supplied.
Because of the substantive changes made to the original rulemaking, it is necessary for the regulations to be republished as a Proposed Rulemaking.
Chapter 47, HEALTH-CARE FACILITY UNLICENSED PERSONNEL CRIMINAL BACKGROUND CHECKS, of subtitle B, PUBLIC HEALTH AND MEDICINE, of title 22, HEALTH, of the DCMR is amended as follows:
Section 4701, BACKGROUND CHECK REQUIREMENT, is amended as follows:
Subsection 4701.1 is amended to read as follows:
4701.1 A long-term care facility, acute care facility or other facility including, but not limited to a community residence facility, or assisted living facility, shall not offer to employ or contract with any unlicensed person, or person licensed, registered, or certified under Chapter 12 of Title 3 of the D.C. Official Code unless within a forty-five (45) day period immediately preceding the date of employment or commencement of contract services the following has occurred:
(a) Pursuant to § 4701.2 and 4701.3, the person has undergone fingerprinting or live scan performed in the District of Columbia with the resulting criminal history, if any, revealing all convictions that have occurred within the District of Columbia and the fifty (50) states;
(b) The Department of Health verifies that the person has not been convicted, within the seven (7) years before the criminal background check, of any of the offenses listed in § 4705.1;
(c) The Department of Health and those facilities identified pursuant to § 4701.1 verify by means of a check, that the person’s name is not on the Nurse Abuse Registry or Sexual Abuse Registry; and
(d) The person provides a sworn statement affirming that there are no
criminal matters pending against him or her.
Subsection 4701.2 is amended to read as follows:
4701.2 Each facility identified in § 4701.1 shall cause each prospective employee or contract worker who will have, or foreseeably may have direct patient, resident, or client access, to undergo a criminal background check that shall reveal the criminal history, if any, in the District of Columbia and the fifty (50) states. Fingerprinting or live scan shall be performed in the District of Columbia utilizing the Metropolitan Police Department (MPD) or a private agency. The criminal background check shall be performed, following fingerprinting or live scan, by the MPD and Federal Bureau of Investigation (FBI) in an FBI-approved environment. The results of the criminal background checks shall be forwarded to the Department of Health.
Subsection 4701.3 is amended to read as follows:
4701.3 The results of the criminal background check shall disclose the criminal history, if any, of the prospective employee or contract worker for the previous seven (7) years before the check.
Subsection 4701.4 is amended to read as follows:
4701.4 An employee or contract worker shall be required to undergo a subsequent criminal background check every four (4) years after the date of his or her initial background check, provided that if the name of the employee appears in the FBI databank when the “rap back” system is implemented,
the employee shall not be required to have a subsequent criminal
background check performed.
Subsections 4701.5 through 4701.9 are repealed.
Section 4702, FEES, subsection 4702.1 is amended to read as follows:
4702.1 In order to obtain the criminal background check, the facilities identified in § 4701.1, prospective employee, or contract worker shall pay the fee that is established to have the criminal background check performed by the Metropolitan Police
Department and the Federal Bureau of Investigation (FBI), or a
private agency.
Section 4706, PENALTIES, is amended by adding a new subsection 4706.3 to read as follows:
4706.3 Any person who makes a false statement concerning a material matter
required by this chapter shall be subject to prosecution.
Section 4799, DEFINITIONS, subsection 4799.1 is amended by inserting the following definitions in alphabetical order:
Direct patient, resident, or client access –access to a patient, resident, or client of a long-term care facility, or other facility including, but not limited to an assisted living facility, a residential habilitation home, or any other home and community based waiver home licensed by the Department of Health, that involves, or may foreseeably involve, one-on-one contact with a patient, client, or resident. However, the term does not include a volunteer unless the volunteer has duties that are equivalent to the duties of a direct patient, resident, or client access employee and those duties involve, or may involve, one-on-one contact with a patient, resident, or client of the long-term care facility.
Long-term care facility –the following facilities which receive payment for services under Title XVIII (Heath Insurance for the Aged and Disabled) or XIX
(Grants to States for Medical Assistance Programs) of the Social Security Act: H.R. 3590-609:
(a) A skilled nursing facility as defined in § 1819(a) of the Social Security Act (42 U.S.C. § 1395i-3(a));
(b) A nursing facility as defined in § 1919(a) of the Act (42 U.S.C.
§ 396r(a));
(c) A home health agency;
(d) A provider of hospice care as defined in § 1861(dd)(1) of the Act
(42 U.S.C. § 1395x(dd)(1));
(e) A long-term care hospital as described § 1886(d)(1)(B)(iv) of the Act
(42 U.S.C. § 1395ww(d)(1)(B)(iv));
(f) A provider of personal care services;
(g) A provider of adult day care;
(h) A residential care provider that arranges for, or directly provides, long-term care services, including an assisted living facility that provides a level of care established by the Secretary;
(i) An intermediate care facility for people with Developmental Disabilities/Intellectual Disabilities (DD/ID)as defined in § 1905(d) of the Act (42 U.S.C. § 1396d(d)); or
(j) Any other facility or provider of long-term care services under such titles
as the District of Columbia determines appropriate.
Rap back –notification by the FBI’s Next General Identification (NGI) to the Department of Health of criminal activity that occurs by an employee subsequent to fingerprinting.
All persons desiring to comment on the subject of this proposed rulemaking should file comments in writing not 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, 899 North Capitol Street, N.E., 5th Floor, Washington, D.C., 20002. Copies of the proposed rules may be obtained from the Department of Health at the same address during the hours of 9 a.m. to 5 p.m., Monday through Friday, excluding holidays.
