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DEPARTMENT OF HEALTH
NOTICE OF THIRD 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 on October 7, 2011, at 58 DCR 8598. Several comments were received by the Health Regulation and Licensing Administration, and are being adopted. They are as follows: subsection 4701.1 was amended so that the unlicensed personnel required to undergo criminal background checks would be specified as those having direct patient, resident, or client access, and so that the forty-five (45) day window by which the background checks must be performed would be specified to terminate at the date of “initial” employment or “initial” commencement of the worker’s contract services so as to prevent redundant criminal background checks from being run when a worker is subsequently re-hired at the completion of his or her employment; subsection 4701.1(c) was amended so that Sex Abuse Registry name would be changed to “Dru Sjodin National Sex Offender Public Website” to identify the specific database applicable facilities must check, and that the Nurse Abuse Registry would be corrected to read “Nurse Aid Abuse Registry” as intended and defined in D.C. Official Code § 44-551(4) (2011 Supp.), and so that the scope of the abuse registry background checks would be defined to include the state or states in which the person has lived or worked; a new subsection 4701.5 was added so that the Department of Health must notify the applicable facility of a positive criminal background check result within the forty-five (45) day window prior to commencement of the subject’s employment; a new subsection 4701.6 was added so that the applicable facilities must inform the Department of Health of the resignation or termination of an employee subject to a criminal background check under this chapter; a new subsection 4701.7 was added so that applicable facilities are not required to report the completion of a contract worker’s employment contract when that contract worker is being immediately re-hired; subsection 4701.9 is repealed; subsection 4799.1 was amended so that the definition of “Direct patient, resident, or client access” would be narrowed in scope to apply to only those unlicensed professionals who may foreseeably be present 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, and so that a definition would be added for the Dru Sjodin National Sex Offender Public Website, and so that “Contract Worker” would include the criteria of “direct patient, resident, or client access” in its definition.
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
having direct patient, resident, or client access, or person licensed, registered, or certified under chapter 12 of itle 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 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 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 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 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.
Subsection 4701.5is amended to read as follows:
4701.5 The Department of Health shall notify a long-term facility, acute care facility, or other facility including, but not limited to a community residence facility, or assisted living facility 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 long-term care facility, acute care facility or other facility including, but not limited to a community residence facility, or assisted living facility 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.
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 so 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 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:
Contract worker – a compensated contractor, or the agent or employee of a contractor, for whom it is foreseeable that he or she will have direct patient, resident, or client access.
Direct patient, resident, or client access –access to a patient, resident, or client of a long-term care facility, acute care facility or other facility including, but not limited to a community residence facility, or assisted living facility, or any other home and community based waiver home licensed by the Department of Health, 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.
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 can be sent by first-class U.S. mail to the Department of Health, Office of the General Counsel, 899 North Capitol Street, N.E., 5th Floor, Washington, D.C., 20002, or by email to Van Brathwaite at van.brathwaite@dc.gov. Questions regarding the proposed rulemaking should be directed to Van Brathwaite, at (202) 442-4899. 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.
