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DEPARTMENT OF HEALTH
NOTICE OF FOURTH 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 the 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 as a Third Proposed Rulemaking on February 3, 2012 at 59 DCR 000786.
As a result of comments received by the D.C. Hospital Association, the term “acute care facility” was removed from the introductory paragraph for section 4701.1. In addition, in section 4701.1 the terms “community residence facility” and “assisted living facility” are being removed and the terms “facility” and “long term facility” are being substituted.
Subsection 4701.1(a) is being amended to state that the criminal background check may be fingerprinting or live scan but must be performed in the District of Columbia. Subsection 4701.1(b) specifies that the Department of Health (DOH) will verify whether a person has been convicted of a crime within the last seven (7) years. Subsection 4701.1(c) is being amended to specify that DOH and the employing facilities shall verify that the prospective employee’s name is not on the Dru Sjodin National Sex Offender Public Website or the Nurse Aide Abuse Registry. In addition, subsection 4701.1(d) is being amended to specify that the prospective employee must provide a sworn affidavit that there is no criminal matter pending against him or her.
In subsection 4701.2, the phrase “long-term care facility or provider” is being added to the introductory sentence.
Subsection 4701.3 is being amended to state that the criminal background check will disclose criminal activity, if any for the previous seven (7) years before the check.
Subsection 4701.4 is being amended to state that the check will be repeated at four (4) year intervals but will not be necessary if the FBI implements a “rapback” system.
Subsection 4701.5 is being amended to state that DOH will notify a prospective employer if there are positive results from a criminal background check.
Subsection 4701.6 is being amended to state that it is an employer’s responsibility to notify DOH within ten (10) days if an employee is terminated for criminal, unprofessional, or unethical conduct.
Subsection 4701.7 is being amended to state that a contract worker shall not be considered to be a person who has resigned or been terminated if the person’s employment contract is renewed within forty-five (45) days of its satisfaction.
Subsection 4701.9 is being repealed.
Subsection 4702.1 is being amended to state that it is the responsibility of the employer, prospective employee, or contract worker to pay the criminal background check fee.
A new subsection 4706.3 is added to state that a person who makes a false statement concerning a material matter required by chapter 47 shall be subject to criminal prosecution.
Under section 4799 definitions are added for the terms “direct patient, resident, or client access” and “long-term care facility or provider.”
Because of the substantive changes made since the last Rulemaking, it is necessary for these regulations to be published again 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 facility, long-term care facility or provider, shall not offer to employ or contract with any unlicensed person having direct patient, resident, or client access, 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 initial employment or initial 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 which has resulted in a criminal history, that reveals 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 Dru Sjodin National Sex Offender Public Website coordinated by the United States Department of Justice, or the Nurse Aide Abuse Registry of the District of Columbia or such registry in the state or states in which the person has lived or worked; 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, long-term care facility or provider, 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 a 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.
Subsection 4701.5 is amended to read as follows:
4701.5 The Department of Health shall notify a facility, long-term care facility or provider that employs the subject of a criminal background check which returns positive results for any of the offenses listed in § 4705.1 within forty-five (45) days prior to the commencement of the subjects employment.
Subsection 4701.6 is amended to read as follows:
4701.6 A facility, long-term care facility or provider shall inform the Department of Health within ten (10) days of the resignation or termination of any employee subject to criminal background checks under this chapter whose resignation or termination was for criminal, unprofessional, or unethical conduct.
Subsection 4701.7 is amended to read as follows:
4701.7 A contract worker shall not be considered resigned or terminated for purposes of §4701.6 as long as the employment contract with the facility is renewed within forty-five (45) days of its satisfaction.
Subsection 4701.9 is 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 or provider 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 facility, long-term care facility or provider, that involves, or may foreseeably involve, presence in a room occupied by a patient, client, or resident while not under the immediate and contemporaneous supervision of a licensed health care professional employed by the facility. 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, presence in a room occupied by a patient, resident, or client of the long-term care facility, acute care facility or other facility while not under the immediate and contemporaneous supervision of a licensed health care professional employed by the facility.
(a) A provider of hospice care (as defined in § 1861(dd) (1) of 42
U.S.C. 1395x (dd) (1);
(b) A long-term care hospital as described in § 1886(d) (1) (B) (iv) of 42 U.S.C. 1395ww (d) (1) (B) (iv);
(c) 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; and
(d) Any other facility or provider of long-term care services under such titles as the District of Columbia deems appropriate.
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.
