2005589 Criminal background check

DEPARTMENT OF HEALTH

 

NOTICE OF EMERGENCY AND PROPOSED RULEMAKING

 

The Director of the Department of Health, pursuant to the authority set forth in §§ 5 and 8(c) of the District of Columbia Substance Abuse Treatment and Prevention Act of 1989, effective March 15, 1990 (D.C. Law 8-80; D.C. Official Code §§ 44-1204 and 1207(c) (2005 Repl.)) and Mayor's Order 98-87, dated May 29, 1998, hereby gives notice of the adoption of the following amendments to Title 29 of the District of Columbia Municipal Regulations (DCMR) on an emergency basis.  The Director intends to take final rulemaking action to adopt the rule in not less than thirty (30) days after the date of publication of this notice in the District of Columbia Register. 

 

The Director adopted this emergency rule on February 24, 2012.  Emergency action is necessary because current criminal background check requirements for substance abuse treatment facility staff have no limitation on the period of time that is searched for past criminal records, so that ex-felons who have been rehabilitated are not eligible to work in substance abuse treatment facilities regardless of qualifications and ability to do so.  The current list of prior crimes that disqualify staff is also overbroad so that the pool of potential staff members is severely limited.  The emergency and proposed rules would minimize the types of offenses that would preclude staff from employment and limit the period of time for a search to seven (7) years. 

 

The emergency rule shall take effect upon adoption, and shall continue in effect for one hundred twenty (120) days from February 24, 2012, expiring on June 23, 2012, or until publication of a notice of final rulemaking, whichever occurs earlier.  The rule shall become final upon publication of a notice of final rulemaking in the District of Columbia Register.

 

Section 2326 (Administrative Services: Human Resources – Personnel Policies and Procedures) of chapter 23 (Certification Standards for Substance Abuse Treatment Facilities and Programs) of title 29 (Public Welfare) of the DCMR is amended as follows:

 

Subsection 2326.3 is amended to read as follows:

 

2326.3             A substance abuse treatment facility or program shall develop and implement policies and procedures to:

 

(a)        Ensure that staff qualifications are verified and documented in the personnel files before employment and include:

 

(1)        Educational background and field of study as shown by a valid license, a transcript, or a diploma;

 

(2)        Experience as shown by contacting previous employers and obtaining references; and

 

(3)        Specialized training in relevant subjects;

 

(b)        Ensure that staff has had a criminal background check every two (2) years.  The criminal background check process shall be completed according to the procedures set forth in subsections 2326.9 through 2326.11.  For the purposes of this paragraph, staff shall include a person contracted to perform services at the facility or program.  A criminal background check obtained to satisfy the requirements for licensure as a health care professional shall also satisfy the criminal background check requirement for this section; and

 

(c)        Ensure that staff have drug testing, as applicable.

 

Subsection 2326.4 is amended to read as follows:

 

2326.4             A substance abuse treatment facility or program shall maintain individual personnel records for each person employed that shall include the following:

 

                        (a)        A current job description for each person that is revised as needed;

 

                        (b)        Evidence of a pre-employment physical examination that includes the results of a tuberculin skin test and, if indicated, a chest x-ray;

 

                        (c)        Evidence of the education, training, and experience of the individual and a copy of the current appropriate license, registration, or certification credentials;

 

                        (d)       Written personnel policies distributed to the employee;

 

                        (e)        Notices of official tour of duty, notices of day, evening, night, or rotating shift, payroll information, and disciplinary records;

 

                        (f)        Documentation that the employee has received all immunizations as recommended by the Centers for Disease Control and Prevention for healthcare workers; and

 

                        (g)        Documentation of the results of the criminal background check required by section 2326.3.

 

Subsections 2326.9 through 2326.11 are added to read as follows:

 

2326.9             Before offering to employ an individual, a substance abuse treatment facility or program shall inform the prospective employee of the criminal background check requirement, and shall require the applicant to provide the information necessary for the initiation of the background check.

 

2326.10           The criminal background check shall be obtained from the D.C. Metropolitan Police Department and the U.S. Department of Justice, and shall disclose the criminal history of the prospective employee for the previous seven (7) years in all jurisdictions within which the prospective employee has worked or resided.

 

2326.11           A substance abuse treatment facility or program shall not employ or use the contracted services of any individual who has been convicted, within the seven (7) years prior to a criminal background check of one (1) or more of the following offenses or the equivalent thereof:

                                   

                        (a)        Murder;

 

                        (b)        Attempted murder;

 

                        (c)        Manslaughter;

 

                        (d)       Arson;

 

                        (e)        Assault;

 

                        (f)        Battery;

                       

(g)        Assault and battery;

 

                        (h)        Assault with a dangerous weapon;

 

                        (i)         Mayhem;

 

                        (j)         Threats to do bodily harm;

 

                        (k)        Burglary;

 

                        (l)         Robbery;

 

                        (m)       Kidnapping;

 

                        (n)        Theft;

 

                        (o)        Fraud;

 

                        (p)        Forgery;

 

                        (q)        Extortion;

 

                        (r)        Blackmail;

 

                        (s)        Illegal use of a firearm;

 

                        (t)        Illegal possession of a firearm;

 

                        (u)        Rape;

 

                        (v)        Sexual assault;

 

                        (w)       Sexual battery;

 

                        (x)        Sexual abuse;

 

                        (y)        Child abuse;

 

                        (z)        Cruelty to children;

 

                        (aa)      Unlawful distribution of a controlled substance; and

 

(bb)      Unlawful possession of a controlled substance with intent to distribute.

 

Comments on the proposed rules should be sent in writing to the Department of Health, Office of the General Counsel, 5^th Floor, 899 North Capitol Street, NE, Washington, DC  20002, not later than thirty (30) days after the date of publication of this notice in the D.C. Register.  Copies of the proposed rules may be obtained Monday through Friday, except holidays, between the hours of 8:15 A.M. and 4:45 P.M. at the same address.  Questions concerning the rulemaking should be directed Angli Black, Administrative Assistant, at [e-mail] or [phone].