††††† 906 KAR 1:190. Kentucky Applicant Registry and Employment Screening Program.

 

††††† RELATES TO: 42 U.S.C. 1320 a-7I

††††† STATUTORY AUTHORITY: KRS 194A.050(1), 42 U.S.C. 1320a-7I

††††† NECESSITY, FUNCTION, AND CONFORMITY: KRS 194A.050(1) requires the secretary of the Cabinet for Health and Family Services to promulgate administrative regulations necessary to operate programs and fulfill the responsibilities vested in the cabinet, qualify for the receipt of federal funds, and cooperate with other state and federal agencies for the proper administration of the cabinet and its programs. 42 U.S.C. 1320a-7I directs the secretary of the United States Department of Health and Human Services to establish a program to identify efficient, effective, and economical procedures for long-term care facilities or providers to conduct background checks on prospective direct patient access employees on a nationwide basis. On May 20, 2011, the Commonwealth of Kentucky was the twelfth state to receive a National Background Check Program (NBCP) grant awarded by the Centers for Medicare and Medicaid Services under 42 U.S.C. 1320a-7I. On the date this amended after comments administrative regulation was filed with the Legislative Research Commission, twenty-four states and territories had received an NBCP grant. The Cabinet for Health and Family Services, Office of Inspector General is charged with responsibility to oversee and coordinate Kentuckyís fingerprint-supported NBCP grant initiative, called the KARES "Kentucky Applicant Registry and Employment Screening" Program. This administrative regulation establishes procedures for the implementation of KARES as a voluntary program. The Cabinet for Health and Family Services encourages long-term care facilities and providers to participate in KARES as the grant program provides employers with an enhanced pre-employment screening mechanism intended to help protect elderly and vulnerable adults from potential abuse, neglect, and exploitation. The conditions set forth in this administrative regulation for voluntary KARES program participants are in addition to the name-based, state only background check requirements of KRS 216.533, 216.712(2), 216.787, and 216.789.

 

††††† Section 1. Definitions. (1) "Applicant" means an individual who applies for employment with an employer identified in subsection (6) of this section.

††††† (2) "Cabinet" means the Cabinet for Health and Family Services.

††††† (3) "Criminal background check" means a state and national fingerprint-supported

criminal history background check performed by the Department of Kentucky State Police and the Federal Bureau of Investigation.

††††† (4) "Disqualifying offense" means:

††††† (a) A conviction of, or a plea of guilty, an Alford plea, or a plea of nolo contendere to:

††††† 1. A misdemeanor offense related to abuse, neglect, or exploitation of an adult as defined by KRS 209.020(4) or child, or a sexual offense;

††††† 2. A criminal offense against a victim who is a minor, as defined in KRS 17.500;

††††† 3. A felony offense involving a child victim;

††††† 4. A felony offense under:

††††† a. KRS Chapter 209;

††††† b. KRS Chapter 218A;

††††† c. KRS 507.020;

††††† d. KRS 507.030;

††††† e. KRS 507.040;

††††† f. KRS Chapter 508;

††††† g. KRS Chapter 509;

††††† h. KRS Chapter 510;

††††† i. KRS Chapter 511;

††††† j. KRS Chapter 513;

††††† k. KRS 514.030;

††††† l. KRS Chapter 515;

††††† m. KRS 529.100;

††††† n. KRS 529.110;

††††† o. KRS Chapter 530; and

††††† p. KRS Chapter 531;

††††† 5. An offense under a criminal statute of the United States or of another state similar to an offense specified in this paragraph; or

††††† 6. A crime described in 42 U.S.C. 1320a-7;

††††† (b) A substantiated finding of neglect, abuse, or misappropriation of property by a state or federal agency pursuant to an investigation conducted in accordance with 42 U.S.C. 1395i-3 or 1396r;

††††† (c) Registration as a sex offender under federal law or under the law of any state; or

††††† (d) Being listed on a registry as defined in subsection (9) of this section.

††††† (5) "Employee" means an individual who:

††††† (a)1. Is hired directly or through contract by an employer defined in subsection (6) of this section, and has duties that involve or may involve one-on-one contact with a patient, resident, or client; or

††††† 2. Is a volunteer who has duties that are equivalent to the duties of an employee providing direct services and the duties involve, or may involve, one-on-one contact with a patient, resident, or client; and

††††† (b) Has access to the personal belongings or funds of a patient, resident, or client.

††††† (6) "Employer" means:

††††† (a) A long-term care facility as defined in KRS 216.510;

††††† (b) A nursing pool as defined in subsection (7) of this section providing staff to a long-term care facility or provider;

††††† (c) An adult day health care program as defined in KRS 216B.0441;

††††† (d) An assisted living-community as defined in KRS 194A.700;

††††† (e) A home health agency as defined in KRS 216.935;

††††† (f) A provider of hospice care as defined in 42 U.S.C. 1395x(dd)(1) and licensed pursuant to KRS Chapter 216B;

††††† (g) A personal services agency as defined in KRS 216.710;

††††† (h) A long-term care hospital as defined in 42 U.S.C. 1395ww(d)(1)(B)(iv);

††††† (i) A provider of home and community-based services authorized under KRS Chapter 205;

††††† (j) A staffing agency with a contracted relationship to provide one (1) or more employers as listed in this subsection with staff whose duties are equivalent to duties performed by an employee pursuant to subsection (5) of this section; or

††††† (k) Any other health facility or service licensed pursuant to KRS Chapter 216B that applies to participate voluntarily in the KARES program.

††††† (7) "Nursing pool" means a person, firm, corporation, partnership, or association engaged for hire in the business of providing or procuring temporary employment in or with a long-term care facility or provider for medical personnel, including nurses, nursing assistants, nursing aides, and orderlies.

††††† (8) "Registry" means the:

††††† (a) Nurse aide abuse registry maintained pursuant to 906 KAR 1:100 and 42 C.F.R. 483.156;

††††† (b) Child abuse and neglect registry maintained pursuant to 922 KAR 1:470 and required by 42 U.S.C. 671(a)(20);

††††† (c) List of Excluded Individuals and Entities maintained by the United States Department of Health and Human Services, Office of Inspector General pursuant to 42 U.S.C. 1320a-7; and

††††† (d) Any available abuse registry, including the abuse and neglect registries of another state if an applicant resided in that state.

††††† (9) "State" is defined by KRS 446.010(40).

††††† (10) "Violent crime" means a conviction of, or a plea of guilty, an Alford plea, or a plea of nolo contendere to a capital offense, Class A felony, or Class B felony involving the death of the victim, rape in the first degree or sodomy in the first degree of the victim, sexual abuse in the first degree, or serious physical injury to a victim.

 

††††† Section 2. Applicability and Exceptions. (1) This administrative regulation shall apply to:

††††† (a) Prospective cabinet staff hired on or after the effective date of this administrative regulation whose duties include conducting inspections of:

††††† 1. Health facilities and services licensed pursuant to KRS Chapter 216B; or

††††† 2. Services regulated pursuant to KRS 194A.700 through 194A.729, or KRS 216.710 through 216.714;

††††† (b) Prospective employees hired on or after the effective date of this administrative regulation of state-owned or operated health facilities licensed pursuant to KRS Chapter 216B;

††††† (c) Prospective cabinet staff hired on or after the effective date of this administrative regulation who have or may have one-on-one contact with a patient or resident of an employer defined by Section 1(6) of this administrative regulation; and

††††† (d) Prospective employees seeking employment with a private employer that participates voluntarily in the KARES Program hired on or after the effective date of this administrative regulation.

††††† (2) This administrative regulation shall not apply to current cabinet staff or current employees of any employer that participates voluntarily in the KARES program that are employed before the effective date of this administrative regulation.

††††† (3) A prospective employee shall not include:

††††† (a) An individual who independently contracts with a KARES-participating employer to provide utility, construction, communications, or other services if the contracted services are not directly related to the provision of services to a resident, patient, or client of the employer; or

††††† (b) A board certified physician, surgeon, or dentist under contract with a KARES-participating employer.

 

††††† Section 3. Agreement to Participate. An employer that elects to participate in KARES voluntarily shall complete and submit an Agreement to Participate in the KARES Program.

 

††††† Section 4. Registry and Criminal Background Checks: Procedures and Payment.

††††† (1) To initiate the process for obtaining a background check on a prospective employee, the employer shall:

††††† (a) Request that the applicant provide a copy of his or her driverís license or government-issued photo identification and verify that the photograph clearly matches the applicant;

††††† (b) Request that the applicant complete a:

††††† 1. Disclosure Form; and

††††† 2. Consent and Release Form; and

††††† (c) Log on to the KARES portal, which shall be a secure web-based system maintained by the cabinet, and enter the applicantís demographic information for a check of:

††††† 1. Each registry as defined by Section 1(8) of this administrative regulation; and

††††† 2. Databases maintained separately by the Kentucky Board of Medical Licensure, Kentucky Board of Nursing, and Kentucky Board of Physical Therapy to validate the applicantís professional licensure status, if applicable.

††††† (2) An applicant who is found on the child abuse and neglect central registry maintained pursuant to 922 KAR 1:470 may request a rehabilitation review pursuant to Section 9 of this administrative regulation.

††††† (3)(a) If an applicant is cleared for hire after a check of the registries and databases identified in subsection (1)(c) of this section, the employer shall submit payment via credit or debit card for the criminal background check.

††††† (b)1. Effective until May 19, 2014, or until NBCP grant funds are depleted, whichever date is later, employers shall pay the twenty (20) dollar fee charged by the Justice and Public Safety Cabinet pursuant to paragraph (d)1. of this subsection.

††††† 2. Effective until May 19, 2014, or until NBCP grant funds are depleted, whichever date is later, grant monies shall be used to subsidize:

††††† a. The cost of the national criminal background check charged by the Federal Bureau of Investigation pursuant to paragraph (d)2. of this subsection; and

††††† b. The administrative cost charged by the cabinet pursuant to paragraph (d)3. of this subsection.

††††† (c) Effective until May 19, 2014, or until NBCP grant funds are depleted, whichever date is later, the cabinet shall pay all costs identified in paragraph (d) of this subsection if a criminal background check is conducted on behalf of a prospective provider of home and community-based services authorized under KRS Chapter 205. This exemption for providers of home and community-based services is a condition of the NBCP grant.

††††† (d) After May 19, 2014, or after NBCP grant funds are depleted, whichever date is later, the total cost of a criminal background check charged to employers shall be sixty-three (63) dollars, divided into the following components:

††††† 1. A fee of twenty (20) dollars charged by the Justice and Public Safety Cabinet;

††††† 2. A fee of sixteen (16) dollars and fifty (50) cents charged by the Federal Bureau of Investigation; and

††††† 3. A fee of twenty-six (26) dollars and fifty (50) cents charged by the cabinet to cover the cost of facilitating the criminal background check.

††††† (4)(a) Upon submission of payment pursuant to subsection (3) of this section, the employer shall print a copy of the Live Scan Fingerprinting Form from the KARES portal and provide the form to the applicant.

††††† (b) The applicant shall:

††††† 1. Have thirty (30) calendar days from the date of payment pursuant to subsection (3) of this section to submit his or her fingerprints at an authorized collection site; and

††††† 2. Present the Live Scan Fingerprinting Form and driverís license or government-issued photo identification to the designated agent at the authorized collection site prior to fingerprint submission.

††††† (5) Upon completion of a criminal background check, the cabinet shall:

††††† (a) Provide notice to the employer that the applicant is clear to hire, or not clear to hire if the applicant is found by the cabinet to have a disqualifying offense; and

††††† (b) Not disclose the applicantís criminal history to the employer.

 

††††† Section 5. Provisional Employment. (1) If an applicant is not found on a registry and the individualís license has been validated, if applicable, an employer may hire the applicant for a period of provisional employment pending completion of the criminal background check.

††††† (2) The period of provisional employment shall:

††††† (a) Not commence prior to the date the applicant submitted his or her fingerprints; and

††††† (b) Not exceed sixty (60) days from the date of fingerprint collection.

††††† (3) During the period of provisional employment, the individual shall not have supervisory or disciplinary power or routine contact with patients, residents, or clients without supervision on-site and immediately available to the individual.

 

††††† Section 6. Individuals Ineligible to be Hired. An employer participating in the KARES program, an agency within the cabinet responsible for conducting inspections of any employer, or a state-owned or operated health facility shall not employ, contract with, or permit to work as an employee any applicant that submits to a background check if one (1) or more of the following are met:

††††† (1) The applicant refuses to provide photo identification or complete the Disclosure Form or Consent and Release Form required by Section 4(1)(a) and (b) of this administrative regulation;

††††† (2) The applicant is found on a registry as defined by Section 1(8) of this administrative regulation;

††††† (3) The applicantís professional license is not in good standing, if applicable;

††††† (4) The applicant fails to submit his or her fingerprints at an authorized collection site within thirty (30) calendar days of payment submitted pursuant to Section 4(3) of this administrative regulation;

††††† (5) Upon completion of the criminal background check, the employer, cabinet agency, or state-owned or operated health facility receives notice that the applicant is not clear for hire based on a cabinet determination that the individual has been found to have a disqualifying offense; or

††††† (6) Final disposition of a criminal charge related to a disqualifying offense is not provided to the cabinet within sixty (60) days of fingerprint submission.

 

††††† Section 7. Notice of a Disqualifying Offense and Appeals. (1) The cabinet shall notify each applicant determined to have a disqualifying offense.

††††† (2) In addition to the cabinetís notification required by subsection (1) of this section, an employer that receives notice from the cabinet that an individual has been determined to have a disqualifying offense shall notify the individual of the cabinetís determination within three (3) business days of receipt of the notice.

††††† (3) An applicant who receives notice of a disqualifying offense may:

††††† (a) Request a rehabilitation review pursuant to Section 9 of this administrative regulation; or

††††† (b) Challenge the accuracy of the cabinetís determination regarding a disqualifying offense by submitting a written request to the cabinet for an informal review of the cabinetís determination or file an appeal under KRS Chapter 13B within ten (10) days of the date of the notice of the disqualifying offense. An applicant may appeal the results of an informal review by submitting a written request to the cabinet for appeal under KRS Chapter 13B within five (5) days of notice of the decision from an informal review.

††††† (4) If an applicant wishes to obtain information concerning the disqualifying offense or challenge the accuracy of a criminal background check, the cabinet shall refer the individual to the appropriate state or federal law enforcement agency.

††††† (5) If an applicant challenges the finding that he or she is the true subject of the results from a registry check, the cabinet shall refer the individual to the agency responsible for maintaining the registry.

 

††††† Section 8. Termination of a Provisional Employee Upon Receipt of Notice of a Disqualifying Offense.

††††† (1) If a provisional employee has not requested an informal review or an appeal pursuant to Section 7(3)(b) of this administrative regulation, the employer shall:

††††† (a) Terminate the employee no later than six (6) business days after receipt of notice of the disqualifying offense; and

††††† (b) Submit a written attestation statement to the cabinet affirming the employeeís dismissal within three (3) business days of termination.

††††† (2) If a provisional employee requests an informal review or an appeal pursuant to Section 7(3)(b) of this administrative regulation, the employer may retain the employee pending resolution of the employee's informal review or appeal under the following conditions:

††††† (a) The employee shall be subject to direct, on-site supervision, or reassigned to duties that do not involve one-on-one contact with a resident, patient, or client of the employer;

††††† (b) The employer shall inform the employee that termination shall be immediate if the informal review upholds the cabinetís determination regarding a disqualifying offense, or the employee does not prevail in an appeal requested pursuant to Section 7(3)(b) of this administrative regulation;

††††† (c) The employer shall immediately terminate an employee if the informal review upholds the accuracy of the cabinetís determination regarding a disqualifying offense or the employee does not prevail in an appeal requested pursuant to Section 7(3)(b) of this administrative regulation upon completion of the appeal; and

††††† (d) The employer shall submit a written attestation statement to the cabinet affirming the individualís dismissal within three (3) business days of termination.

 

††††† Section 9. Rehabilitation Review. (1)(a) An applicant found on the child abuse and neglect central registry maintained pursuant to 922 KAR 1:470, or found to have a disqualifying offense upon completion of the criminal background check shall be eligible for consideration of rehabilitation under an independent review process.

††††† (b) Consideration of a disqualifying offense under the rehabilitation review process described in this section shall not apply to:

††††† 1. A disqualifying offense that occurred less than seven (7) years prior to the date of the criminal background check;

††††† 2. A criminal conviction related to abuse, neglect, or exploitation of an adult or child;

††††† 3. Registration as a sex offender under federal law or under the law of any state; or

††††† 4. A conviction for a violent crime.

††††† (2) An applicant may submit a written request for a rehabilitation review to the cabinet no later than fourteen (14) calendar days from the date of the notice of the cabinetís determination issued pursuant to Section 7(1) of this administrative regulation regarding a finding on the child abuse and neglect central registry or determination of a disqualifying offense.

††††† (3) The request for a rehabilitation review shall include the following information:

††††† (a) A written explanation of each finding on the child abuse and neglect central registry or each disqualifying offense, including:

††††† 1. A description of the events related to the registry finding or disqualifying offense;

††††† 2. The number of years since the occurrence of the registry finding or disqualifying offense;

††††† 3. The identification of any other individuals involved in the offense;

††††† 4. The age of the offender at the time of the registry finding or disqualifying offense; and

††††† 5. Any other circumstances surrounding the registry finding or offense;

††††† (b) Official documentation showing that all fines, including court-imposed fines or restitution, have been paid or documentation showing adherence to a payment schedule, if applicable;

††††† (c) The date probation or parole was satisfactorily completed, if applicable; and

††††† (d) Employment and character references, including any other evidence demonstrating the ability of the individual to perform the employment responsibilities and duties competently.

††††† (4) A rehabilitation review shall be conducted by a committee of three (3) employees of the cabinet, each of whom was not responsible for determining:

††††† (a) The finding of child abuse or neglect that placed the individual on the central registry; or

††††† (b) That the individual has a disqualifying offense.

††††† (5) The committee shall consider the information required under subsection (3) of this section, and shall also consider mitigating circumstances including:

††††† (a) The amount of time that has elapsed since the child abuse and neglect central registry finding or disqualifying offense, which shall not be less than seven (7) years in the case of a disqualifying offense;

††††† (b) The lack of a relationship between the registry finding or disqualifying offense and the position for which the individual has applied; and

††††† (c) Evidence that the applicant has pursued or achieved rehabilitation with regard to the registry finding or disqualifying offense. The committee shall make a recommendation to the secretary or designee, who shall be responsible for making the final decision.

††††† (6) The secretary or designee may grant a waiver from the prohibition against employment of an applicant with a child abuse and neglect finding or a disqualifying offense upon consideration of the information required under subsection (3) of this section and the committeeís recommendation of subsection (5) of this section.

††††† (7) No later than thirty (30) calendar days from receipt of the written request for the rehabilitation review, the secretary or designee shall send a written determination on the rehabilitation waiver to the applicant.

††††† (8) The decision of the secretary or designee pursuant to subsection (7) of this section shall be subject to appeal under KRS Chapter 13B.

††††† (9) An individual with a finding on the child abuse and neglect central registry or a disqualifying offense shall not be employed by an employer until the employer receives notification from the cabinet that the individual has been granted a waiver.

††††† (10) An employer is not obligated to employ or offer employment to an individual who is granted a waiver pursuant to this section.

 

††††† Section 10. Pardons and Expungement. An applicant who has received a pardon for a disqualifying offense or has had the record expunged may be employed.

 

††††† Section 11. Status of Employment. An employer participating in KARES shall maintain the employment status of each employee who has submitted to a fingerprint-supported criminal background check by reporting the status using the KARES web-based system.

 

††††† Section 12. Kentucky Applicant Registry and Employment Screening Fund. (1)(a) The Cabinet shall establish a trust and agency fund called the Kentucky Applicant Registry and Employment Screening fund to be administered by the Finance and Administration Cabinet.

††††† (b) The fund shall be funded with moneys collected under Section 4(3) of this administrative regulation.

††††† (2) Moneys in the fund shall be used solely to operate the KARES program.

 

††††† Section 13. Incorporation by Reference. (1) The following material is incorporated by reference:

††††† (a) OIG 1:190-A, "Agreement to Participate in the KARES Program", May 2013;

††††† (b) OIG 1:190-B, "Disclosure Form", May 2013;

††††† (c) OIG 1:190-C, "Consent and Release Form", May 2013; and

††††† (d) OIG 1:190-D, "Live Scan Fingerprinting Form", May 2013.

††††† (2) This material may be inspected, copied, or obtained, subject to applicable copyright law, at the Office of Inspector General, 275 East Main Street, Frankfort, Kentucky 40621, Monday through Friday, 8 a.m. to 4:30 p.m. (40 Ky.R. 203; 873; 1085; eff. 12-10-2013.)