4165294 Notice of Rulemaking to require personnel employed in a facility or by a long-term care facility or provider who have direct patient, resident, or client access to have a criminal background done by the Metropolitan Police Department and the ...
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DEPARTMENT OF HEALTH
NOTICE OF FINAL 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.)) and Mayor’s Order 2000-9, dated January 21, 2000, hereby gives notice of intent to take final 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).
These regulations were previously published in the D.C. Register as a Fourth Proposed Rulemaking on November 23, 2012 at 59 DCR 013367.
Prior to publication of these regulations as a Fourth Proposed Rulemaking, in response to comments received from the D.C. Hospital Association, the term “acute care facility” was removed from the introductory paragraph for Section 4701.1. However, the term was inadvertently included in Section 4799 under the definition of “direct patient, resident, or client access.” The oversight has been corrected in this Final Rulemaking.
Since no substantive changes have been made to this rulemaking, it will become effective upon publication of this notice in the D.C. Register.
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, 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.
