CABINET FOR HEALTH AND FAMILY SERVICES

Office of Inspector General

(Amendment)

 

††††† 906 KAR 1:190. Kentucky National Background Check[Applicant Registry and Employment Screening] Program.

 

††††† RELATES TO: 42 U.S.C. 1320 a-7I, 42 U.S.C. 5119a(a)(1), 42 U.S.C. 5119c

††††† STATUTORY AUTHORITY: KRS 194A.050(1), 216.712, 216.787, 216.789, 42 U.S.C. 1320a-7I, 42 U.S.C. 5119a(a)(1)

††††† 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. 42 U.S.C. 5119a(a)(1) authorizes states to have in effect procedures, established by state statute or regulation, that require qualified entities designated by the state to contact an authorized agency of the state to request a nationwide background check for the purpose of determining whether a provider has been convicted of a crime that bears upon the providerís fitness to have responsibility for the safety and well-being of children, the elderly, or individuals with disabilities. KRS 216.789, KRS 216.787 and KRS 216.712 authorize the secretary of the Cabinet for Health and Family Services to establish procedures for criminal background checks for employees of certain entities that provide direct services to the elderly or individuals with disabilities. This administrative regulation establishes requirements for implementation of the Kentucky National Background Check Program (NBCP). A key component of the Kentucky NBCP is a secure, web-based system, called the KARES system, used to facilitate registry and fingerprint-supported state and national criminal background checks[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:

††††† (a) Applies for employment with a care provider[an employer] identified in subsection (3)[(6)] of this section; or

††††† (b) Is subject to background screening by a professional licensing board enrolled in the Kentucky NBCP.

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

††††† (3) "Care provider" means:

††††† (a) A long-term-care facility as defined in KRS 216.510, excluding:

††††† 1. Family care homes; and

††††† 2. Acute-care facilities performing long-term-care services or hospice services at the same location as the acute-care facilities;

††††† (b) A nursing pool, as defined in KRS 216.785(4), providing staff to a long-term-care facility or other care provider as defined in this subsection;

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

††††† (i) 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 defined by subsection (6) of this section; or

††††† (j) Any other provider licensed by the cabinet in which a state and national background check is required as a condition of employment.

††††† (4) "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.

††††† (5)[(4)] "Disqualifying offense" means:

††††† (a) An arrest, a conviction of,[or] a plea of guilty, an Alford plea, or a plea of nolo contendere to:

††††† 1. A misdemeanor offense related to:

††††† a. Abuse, neglect, or exploitation of an adult as defined by KRS 209.020(4);

††††† b. Abuse, neglect, or exploitation of a[or] child[, or];

††††† c. A sexual offense;

††††† d. Assault occurring less than seven (7) years from the date of the criminal background check;

††††† e. Domestic violence occurring less than seven (7) years from the date of the criminal background check;

††††† f. Theft occurring less than seven (7) years from the date of the criminal background check;

††††† g. Fraud occurring less than seven (7) years from the date of the criminal background check; or

††††† h. Possessing or trafficking in a controlled substance occurring less than seven (7) years from the date of the criminal background check;

††††† 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, protection of adults;

††††† b. KRS Chapter 218A, controlled substances;

††††† c. KRS Chapter 507, criminal homicide[507.020];

††††† d. KRS Chapter 507A, fetal homicide[507.030];

††††† e.[KRS 507.040; f.] KRS Chapter 508, assault and related offenses;

††††† f.[g.] KRS Chapter 509, kidnapping and related offenses;

††††† g.[h.] KRS Chapter 510, sexual offenses;

††††† h.[i.] KRS Chapter 511, burglary and related offenses;

††††† i.[j.] KRS Chapter 512, criminal damage to property;

††††† j. KRS Chapter 513, arson and related offenses;

††††† k. KRS Chapter 514, theft and related offenses[514.030];

††††† l. KRS Chapter 515, robbery;

††††† m. KRS Chapter 516, forgery and related offenses;

††††† n. KRS Chapter 517, business and commercial frauds;

††††† o. KRS Chapter 525, riot, disorderly conduct, and related offenses;

††††† p. KRS Chapter 527, offenses relating to firearms and weapons;

††††† q. KRS Chapter 529, prostitution offenses;

††††† r. KRS Chapter 530, family offenses;

††††† s. KRS Chapter 531, pornography; or

††††† t. Any other felony offense relating to abuse, neglect, exploitation, drugs, theft, or fraud not listed in this subsection[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 (8)[(9)] of this section.

††††† (6)[(5)] "Employee" means an individual who:

††††† (a)1. Is hired directly or through contract by a care provider[an employer] defined in subsection (3)[(6)] of this section, and has duties that involve[or may involve] one-on-one contact with a patient, resident, or client; or

††††† 2. Unless excluded pursuant to Section 2(3)(c) through (d) of this administrative regulation, 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.

††††† (7) "Kentucky National Background Check Program" or "NBCP" means a background screening program administered by the cabinet to facilitate registry and fingerprint-supported state and national criminal history background checks conducted by the Department of Kentucky State Police and the Federal Bureau of Investigation for:

††††† (a) Prospective employees of any care provider as identified in subsection (3) of this section; and

††††† (b) Any other individuals required by state law or administrative regulation to submit to a state and national background check as a condition of:

††††† 1. Employment; or

††††† 2. Licensure, certification, or registration by a professional licensing board[(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) Caregiver misconduct registry required by KRS 209.032; and

††††† (e) Any available abuse registry, including the abuse and neglect registries of another state if an applicant resided or worked 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) As a condition of employment, the following individuals shall submit to a check of the registries identified in Section 1(8) of this administrative regulation and a fingerprint-supported state and national criminal background check[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 care providers[:

††††† 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 a care provider[an employer defined by Section 1(6) of this administrative regulation]; and

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

††††† (2) Nothing in this administrative regulation shall be construed to limit a care provider from requiring a fingerprint-supported state and national criminal background check on the providerís current employees if the provider elects to screen existing employees[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 care provider[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 provider[employer];[or]

††††† (b) A board certified physician, surgeon, or dentist under contract with a care provider;

††††† (c) A member of a community-based or faith-based organization that provides volunteer services that do not involve unsupervised interaction with a patient or resident;

††††† (d) A student participating in an internship program; or

††††† (e) A family member or friend visiting a patient or resident.

††††† (4) Effective January 1, 2016, a care provider not currently participating in Kentuckyís NBCP:

††††† (a) Shall enroll in the Kentucky NBCP:

††††† 1. As a condition of the providerís initial licensure, certification, or registration renewal; or

††††† 2. Prior to the effective date of renewal of the providerís licensure, certification, or registration; and

††††† (b) May contract with one (1) or more vendors approved by the cabinet and Department of Kentucky State Police in accordance with subsection (6) of this section to perform all or part of the electronic fingerprinting. The care providerís contract shall ensure that the owners and personnel of the vendor performing the electronic fingerprinting are qualified and will ensure the integrity and security of all personal information pursuant to subsection (6) of this section.

††††† (5) Nothing in this administrative regulation shall be construed to limit a care provider from enrolling in the Kentucky NBCP at any time prior to annual licensure, certification, or registration renewal.

††††† (6) To be approved as a vendor that submits fingerprints on behalf of care providers, the vendor shall comply with the following minimum requirements:

††††† (a) Enter into an agreement with the cabinet and the Department of Kentucky State Police that obligates the vendor to comply with specified standards established by the Department of Kentucky State Police and the Federal Bureau of Investigation (FBI) to ensure that all individuals having direct or indirect responsibility for verifying identification, taking fingerprints, and electronically submitting fingerprints are qualified to do so and the integrity and security of all personal information gathered from the individuals whose fingerprints are submitted;

††††† (b) Meet the Department of Kentucky State Police and the FBIís technical standards for the electronic submission of fingerprints; and

††††† (c) Have the ability to communicate electronically with the cabinet[KARES-participating employer].

 

††††† Section 3. Continuous Assessment. (1) To ensure that the information remains current in the KARES system, the Department of Kentucky State Police shall:

††††† (a) Retain the fingerprints of an individual screened under the Kentucky NBCP:

††††† 1. For a minimum period of five (5) years from the date of fingerprint submission; and

††††† 2. On a five (5) year renewal basis thereafter; and

††††† (b) Facilitate the retention of the fingerprints by the FBI upon approval to participate in the FBIís Next Generation Identification (NGI) rap back service.

††††† (2) The Department of Kentucky State Police and the FBI shall provide notification to the cabinet of triggering events for individuals after the initial processing of the criminal background checks when the service becomes available and subject to any applicable regulations of the Department of Kentucky State Police and the FBI.

 

††††† Section 4. Enrolling in the Kentucky NBCP. To enroll in the Kentucky NBCP, a care provider, other employer required by law to conduct background screening of employees, or a professional licensing board required by law to conduct background screening of licensees shall:

††††† (1) Log on to the KARES portal; and

††††† (2) Confirm acceptance of the terms and conditions for using the KARES system[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 5. Required Notice to Applicant. (1) Prior to initiating a background check facilitated by the KARES system, a care provider shall provide the applicant with an application form that conspicuously states the following: "FOR THIS TYPE OF EMPLOYMENT STATE AND FEDERAL LAW REQUIRE A STATE AND NATIONAL CRIMINAL BACKGROUND CHECK AS A CONDITION OF EMPLOYMENT.".

††††† (2) An entity participating in the Kentucky NBCP shall provide notice to the applicant that the applicantís responsibilities include the following:

††††† (a) The applicant shall provide a set of fingerprints; and

††††† (b) The applicant shall provide his or her name, social security number, address, and date of birth as they appear on a document commonly accepted for the purpose of identification.

 

††††† Section 6.[4.] Registry and Criminal Background Checks: Procedures and Payment. (1) To initiate the process for obtaining a background check on a prospective employee or licensee, the care provider, other employer enrolled in the Kentucky NBCP, or professional licensing board 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 sign a form entitled Disclosures to be Provided to and Signed by Applicant for Employment or Licensure;

††††† (c) Request that the applicant complete a Waiver Agreement and Statement[: 1. Disclosure Form; and 2. Consent and Release Form]; and

††††† (d)[(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, and any other available professional licensing board with oversight of a health care profession, including behavioral health profession, 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 participating entity[employer] shall submit payment via credit or debit card for the criminal background check.

††††† (3)(a)[(b)1. Effective until May 19, 2014, or] Until NBCP grant funds are depleted, care providers identified in Section 1(3)(a) through (i) of this administrative regulation shall pay a fee of twenty (20) dollars for a fingerprint-supported state and national criminal background check, which includes the cost of the Kentucky NBCP and the fees of the Department of Kentucky State Police and the FBI.

††††† (b) A participating entity enrolled in the Kentucky NBCP and not identified in Section 1(3)(a) through (i) of this administrative regulation shall pay a fee of twenty (20) dollars in addition to any fees charged by the Department of Kentucky State Police and the FBI for the actual cost of processing a fingerprint-supported state and national criminal background check.

††††† (c) If an applicantís continuous assessment period identified under Section 3 of this administrative regulation has not expired, a fee of twenty (20) dollars shall be charged to view the applicantís current fitness determination and process a new application, in which case a new fingerprint check is not needed.

††††† (d)1. After NBCP grant funds are depleted, the total cost of a fingerprint-supported state and national criminal background check charged to a care provider shall not exceed actual costs of the Kentucky NBCP and the fees charged by the Department of Kentucky State Police and the FBI.

††††† 2. If an applicant has not been previously fingerprinted under the Kentucky NBCP or if the applicantís continuous assessment period has expired, a fee not to exceed twenty (20) dollars in addition to any fees charged by the Department of Kentucky State Police and the FBI for a fingerprint-supported state and national criminal background check shall be charged to the care provider for the cost of a criminal background check[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 care provider or other participating entity[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 an[the] authorized collection site prior to fingerprint submission.

††††† (5) Upon completion of a criminal background check, the cabinet shall[: (a)] provide notice to the care provider or other employer enrolled in the Kentucky NBCP that the applicant is:

††††† (a) Clear to hire;[,] or

††††† (b) Not clear to hire if the applicant is found by the cabinet to have a disqualifying offense as identified in Section 1(5) of this administrative regulation[; and (b) Not disclose the applicantís criminal history to the employer].

††††† (6) A care provider is not obligated to employ or offer employment to an individual who has been found by the cabinet to be clear for hire pursuant to subsection (5)(a) of this section.

 

††††† Section 7.[5.] Provisional Employment. (1) If an applicant is not found on a registry and the individualís license has been validated, if applicable, a care provider[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 8.[6.] Individuals Ineligible to be Hired. A care provider[An employer participating in the KARES program], an agency within the cabinet responsible for conducting inspections of any care provider[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 Disclosures[Disclosure] Form or Waiver Agreement and Statement[Consent and Release Form] required by Section 6[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 5[4](3) of this administrative regulation; or

††††† (5) Upon completion of the initial criminal background check for an applicant or subsequent to the initial fingerprint check on a current employee, the care provider[employer], cabinet agency, or state-owned or operated health facility receives notice from the cabinet that the applicant is ineligible[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 9.[7.] Notice of a Disqualifying Offense and Appeals. (1) The cabinet shall notify each applicant or, if applicable, current employee determined to have a disqualifying offense.

††††† (2) In addition to the cabinetís notification required by subsection (1) of this section, a care provider[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 10[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 or if applicable, current employee 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) A current employee who has submitted to a criminal background check under the Kentucky NBCP and whose fingerprints are retained pursuant to Section 3 of this administrative regulation may challenge the accuracy of the cabinetís determination of a disqualifying offense pursuant to subsection (3)(b) of this section.

††††† (5) If an applicant or, if applicable, current employee 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.

††††† (6)[(5)] If an applicant or, if applicable, current employee 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 10.[8.] Termination of an[a Provisional] Employee Upon Receipt of Notice of a Disqualifying Offense. (1) If a provisional employee or, if applicable, current employee has not requested an informal review or an appeal pursuant to Section 8[7](3)(b) of this administrative regulation, the care provider[employer] shall:

††††† (a) Terminate the employee no later than fourteen (14)[six (6)] business days after receipt of notice of the disqualifying offense; and

††††† (b) Use the KARES system to provide electronic notification[Submit a written attestation statement] to the cabinet affirming the employeeís dismissal within three (3) business days of termination.

††††† (2) If a provisional employee or, if applicable, current employee requests an informal review or an appeal pursuant to Section 8[7](3)(b) of this administrative regulation, the care provider[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 care provider[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 8[7](3)(b) of this administrative regulation;

††††† (c) The care provider[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 8[7](3)(b) of this administrative regulation upon completion of the appeal; and

††††† (d) Using the KARES system, the care provider[employer] shall provide electronic notification[submit a written attestation statement] to the cabinet affirming the individualís dismissal within three (3) business days of termination.

 

††††† Section 11.[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 felony offense that occurred less than ten (10)[seven (7)] years prior to the date of the criminal background check;

††††† 2. A disqualifying misdemeanor offense related to assault, domestic violence, theft, fraud, or possessing or trafficking in a controlled substance that occurred less than seven (7) years prior to the date of the criminal background check;

††††† 3. Any disqualifying felony or misdemeanor offense[A criminal conviction] related to abuse, neglect, or exploitation of an adult or child, or a sexual offense;

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

††††† 5.[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 8[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

††††† 4.[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, none of whom:

††††† (a) Is an employee of the Office of Inspector General; or

††††† (b) Was responsible for determining[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) A care provider[An employer] is not obligated to employ or offer employment to an individual who is granted a waiver pursuant to this section.

 

††††† Section 12.[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 13.[11.] Status of Employment. Each care provider[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 14.[12.] Kentucky National Background Check[Applicant Registry and Employment Screening] Fund. (1)(a) The Cabinet shall establish a trust and agency fund called the Kentucky National Background Check[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 5(2)[4(3)] of this administrative regulation.

††††† (2) Moneys in the fund shall be used solely to operate the Kentucky National Background Check[KARES] program.

 

††††† Section 15. Adverse Action. In accordance with KRS 216B.105 or KRS 194A.707(1), the cabinet shall take action to deny or revoke a care providerís license, certification, or registration for failure to demonstrate compliance with Sections 2 through 12 of this administrative regulation.

 

††††† Section 16.[13.] Incorporation by Reference. (1) The following material is incorporated by reference:

††††† (a) OIG 1:190-1, "Disclosures to be Provided to and Signed by Applicant for Employment or Licensure", November 2015;

††††† (b) OIG 1:190-2, "Waiver Agreement and Statement", November 2015;[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

††††† (c)[(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.

 

MARYELLEN B. MYNEAR, Inspector General

AUDREY TAYSE HAYNES, Secretary

††††† APPROVED BY AGENCY: November 17, 2015

††††† FILED WITH LRC: November 20, 2015 at 3 p.m.

††††† PUBLIC HEARING AND PUBIC COMMENT PERIOD: A public hearing on this administrative regulation shall, if requested, be held on January 21, 2016, at 9:00 a.m. in Conference Suite B, Health Services Building, First Floor, 275 East Main Street, Frankfort, Kentucky. Individuals interested in attending this hearing shall notify this agency in writing by January 13, 2016, five (5) workdays prior to the hearing, of their intent to attend. If no notification of intent to attend the hearing is received by that date, the hearing may be canceled. The hearing is open to the public. Any person who attends will be given an opportunity to comment on the proposed administrative regulation. A transcript of the public hearing will not be made unless a written request for a transcript is made. If you do not wish to attend the public hearing, you may submit written comments on the proposed administrative regulation. You may submit written comments regarding this proposed administrative regulation until close of business, February 1, 2016. Send written notification of intent to attend the public hearing or written comments on the proposed administrative regulation to:

††††† CONTACT PERSON: Tricia Orme, Office of Legal Services, 275 East Main Street 5 W-B, Frankfort, Kentucky 40621, phone (502) 564-7905, fax (502) 564-7573, email tricia.orme@ky.gov.

 

REGULATORY IMPACT ANALYSIS AND TIERING STATEMENT

 

Contact Person: Stephanie Brammer-Barnes

††††† (1) Provide a brief summary of:

††††† (a) What this administrative regulation does: This administrative regulation establishes procedures and requirements for implementation of the Kentucky National Background Check Program (NBCP). Under the Kentucky NBCP, a secure, web-based application called the KARES system is used to facilitate registry and fingerprint-supported state and FBI criminal background checks for prospective employees in long-term care and other settings required by law to conduct background screening of employees, as well as professional licensing boards required by law to conduct background check screening on licensees.

††††† (b) The necessity of this administrative regulation: This administrative regulation is necessary to establish procedures and requirements for implementation of the Kentucky NBCP.

††††† (c) How this administrative regulation conforms to the content of the authorizing statutes: As stated in the Necessity, Function, and Conformity paragraph of this administrative regulation, 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. 42 U.S.C. 5119a(a)(1) authorizes states to have in effect procedures, established by state statute or regulation, that require qualified entities designated by the state to contact an authorized agency of the state to request a nationwide background check for the purpose of determining whether an individual has been convicted of a crime that bears upon that individualís fitness to have responsibility for the safety and well-being of children, the elderly, or individuals with disabilities. KRS 216.789, KRS 216.787 and KRS 216.712 authorizes the secretary of the Cabinet for Health and Family Services to establish procedures for criminal background checks for employees of certain entities which provide direct services to the elderly or individuals with disabilities. Therefore, this administrative regulation conforms to the content of the authorizing statutes by establishing procedures and requirements for implementation of a comprehensive, Cabinet-administered state and national background check program called the Kentucky NBCP.

††††† (d) How this administrative regulation currently assists or will assist in the effective administration of the statutes: This administrative regulation assists in the effective administration of the statutes by establishing procedures and requirements for implementation of the Kentucky NBCP.

††††† (2) If this is an amendment to an existing administrative regulation, provide a brief summary of:

††††† (a) How the amendment will change this existing administrative regulation: In accordance with the initially adopted version of this administrative regulation, the Kentucky NBCP was rolled out as a voluntary program in May 2014. Under this amendment, fingerprint-supported state and national background checks will be required as a condition of employment for new hires in long-term care facilities and other settings as defined by Section 1(3) of this administrative regulation.

††††† (b) The necessity of the amendment to this administrative regulation: This amendment is necessary to require more comprehensive background checks in order to reduce a current gap in state law and enhance efforts to help protect elderly and vulnerable adults from potential abuse, neglect, and exploitation.

††††† (c) How the amendment conforms to the content of the authorizing statutes: This amendment conforms to the content of the authorizing statutes by establishing procedures and requirements for implementation of the Kentucky NBCP.

††††† (d) How the amendment will assist in the effective administration of the statutes: This amendment will assist in the effective administration of the statutes by establishing procedures and requirements for implementation of the Kentucky NBCP to provide fingerprint-supported state and national background checks.

††††† (3) List the type and number of individuals, businesses, organizations, or state and local governments affected by this administrative regulation: Employers required by this administrative regulation to secure a fingerprint-supported state and national criminal record check on new hires include the following: long-term care facilities (491) (except for family care homes and acute-care facilities performing long-term-care services or hospice services at the same location as the acute care facility); nursing pools and staffing agencies which provide staff to long-term care facilities (68); adult day health programs (107); assisted living facilities (110); home health agencies (114); hospice providers (24), including residential hospice (9); personal services agencies (158); providers of home and community based services (over 250); or any other licensed health facility that applies to participate in the Kentucky NBCP. Additionally, new Cabinet staff whose duties include inspecting long-term care employers or who have one-on-one contact with patients or residents, and new Cabinet staff who work in state-run health facilities are subject to a background check under this administrative regulation.

††††† (4) Provide an analysis of how the entities identified in question (3) will be impacted by either the implementation of this administrative regulation, if new, or by the change, if it is an amendment, including:

††††† (a) List the actions that each of the regulated entities identified in question (3) will have to take to comply with this administrative regulation or amendment: Upon data entry of an applicantís information, the NBCP performs an automated database search of all available abuse registries and verifies the applicantís professional licensure status, if applicable. "Hits" on an abuse registry or confirmation that an individualís professional license is not in good standing results in disqualification of the individual from employment, thereby eliminating the need for a criminal background check and the costs associated with such checks. If cleared as a result of the registry check and professional licensure verification, applicants are subject to a fingerprint-supported state and national background check.

††††† (b) In complying with this administrative regulation or amendment, how much will it cost each of the entities identified in question (3): No additional costs will be incurred initially as employers will continue to pay the $20 fee they are currently accustomed to paying for name based, state-only criminal background checks. However, upon depletion of NBCP grant monies, the fee for a fingerprint-supported state and national background check will not exceed actual costs, estimated to be no more than $20 imposed by the Kentucky NBCP plus actual fees charged by the Department of Kentucky State Police and the FBI. Additionally, if an applicant has been previously fingerprinted and his or her "continuous assessment period" as identified under Section 3 of this administrative regulation has not expired, a fee of $20 will be charged to the employer to view the applicantís current fitness determination and process a new application, in which case a new fingerprint check and the associated cost is not needed.

††††† (c) As a result of compliance, what benefits will accrue to the entities identified in question (3): Employers identified under Section 1(3) of this administrative regulation, professional licensing boards, and other entities authorized to use the system will benefit from a comprehensive screening mechanism intended to limit the ability of "bad actors" to hide any criminal or abusive actions committed in other states, and a reduction in costs as applicants previously fingerprinted move from one employer to another.

††††† (5) Provide an estimate of how much it will cost the administrative body to implement this administrative regulation:

††††† (a) Initially: This administrative regulation is funded by NBCP grant monies until May 2016 and subject to a one-year extension upon approval by the Centers for Medicare and Medicaid Services (CMS).

††††† (b) On a continuing basis: Upon depletion of grant monies, the Kentucky NBCP will supported by fees collected. The fee for a fingerprint-supported state and national background check will not exceed actual costs.

††††† (6) What is the source of the funding to be used for the implementation and enforcement of this administrative regulation: As stated previously, federal NBCP grant funds are currently used to implement this administrative regulation. Upon depletion of grant monies, continued funding to support the Kentucky NBCP will be from fees.

††††† (7) Provide an assessment of whether an increase in fees or funding will be necessary to implement this administrative regulation, if new, or by the change if it is an amendment: Upon depletion of grant monies, the cost of fingerprint-supported state and FBI checks will not exceed actual costs.

††††† (8) State whether or not this administrative regulation established any fees or directly or indirectly increased any fees: This administrative regulation establishes fees necessary to sustain operation of the Kentucky NBCP.

††††† (9) TIERING: Is tiering applied? Tiering is not applicable as compliance with this administrative regulation applies equally to all individuals or entities regulated by it.

 

FISCAL NOTE ON STATE OR LOCAL GOVERNMENT

 

††††† 1. What units, parts or divisions of state or local government (including cities, counties, fire departments, or school districts) will be impacted by this administrative regulation? Employers required by this administrative regulation to secure a fingerprint-supported state and FBI criminal record check on new hires include the following: long-term care facilities (except for family care homes and acute-care facilities performing long-term-care services or hospice services at the same location as the acute care facility), nursing pools and staffing agencies which provide staff to long-term care facilities, adult day health programs, assisted living facilities, home health agencies, hospice providers, including residential hospice, personal services agencies, providers of home and community based services, or any other licensed health facility that applies to participate in the Kentucky NBCP. Additionally, new Cabinet staff whose duties include inspecting long-term care employers or who have one-on-one contact with patients or residents, and new Cabinet staff who work in state-run health facilities are subject to a background check under this administrative regulation.

††††† 2. Identify each state or federal statute or federal regulation that requires or authorizes the action taken by the administrative regulation. KRS 194A.050(1), 42 U.S.C. 1320 a-7I, 42 U.S.C. 5119a(a)(1), KRS 216.712, KRS 216.787, KRS 216.789

††††† 3. Estimate the effect of this administrative regulation on the expenditures and revenues of a state or local government agency (including cities, counties, fire departments, or school districts) for the first full year the administrative regulation is to be in effect.

††††† (a) How much revenue will this administrative regulation generate for the state or local government (including cities, counties, fire departments, or school districts) for the first year? The current charge for a name-based, state only criminal record check is $20. Under this administrative regulation, the charge for a fingerprint-supported state and FBI criminal background check will remain $20 initially. However, upon depletion of NBCP grant funds, the revenue generated in fees will not exceed the actual costs.

††††† (b) How much revenue will this administrative regulation generate for the state or local government (including cities, counties, fire departments, or school districts) for subsequent years? During subsequent years, revenue will be based upon fees charged to use the KARES system, not to exceed actual costs.

††††† (c) How much will it cost to administer this program for the first year? This administrative regulation is funded by NBCP grant monies until May 2016 and subject to a one-year extension upon approval by CMS.

††††† (d) How much will it cost to administer this program for subsequent years? Federal NBCP grant funds are currently used to implement this administrative regulation. Upon depletion of grant monies, continued funding to support the Kentucky NBCP will be from fees collected to process fingerprint-supported state and FBI checks, not to exceed actual costs.

††††† Note: If specific dollar estimates cannot be determined, provide a brief narrative to explain the fiscal impact of the administrative regulation.

††††† Revenues (+/-):

††††† Expenditures (+/-):

††††† Other Explanation:

 

FEDERAL MANDATE ANALYSIS COMPARISON

 

††††† 1. Federal statute or regulation constituting the federal mandate. 42 U.S.C. 1320 a-7I and 42 U.S.C. 5119a(a)(1)

††††† 2. State compliance standards. 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. KRS 216.789, KRS 216.787, and KRS 216.712 authorizes the secretary of the Cabinet for Health and Family Services to establish procedures for criminal background checks for employees of certain entities which provide direct services to the elderly or individuals with disabilities.

††††† 3. Minimum or uniform standards contained in the federal mandate. 42 U.S.C. 1320 a-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. As of this date, Kentucky is one of 26 states to receive a National Background Check Program (NBCP) grant awarded by the Centers for Medicare and Medicaid Services under 42 U.S.C. 1320 a-7I. 42 U.S.C. 5119a(a)(1) authorizes states to have in effect procedures, established by state statute or regulation, that require qualified entities designated by the state to contact an authorized agency of the state to request a nationwide background check for the purpose of determining whether an individual has been convicted of a crime that bears upon the individualís fitness to have responsibility for the safety and well-being of children, the elderly, or individuals with disabilities.

††††† 4. Will this administrative regulation impose stricter requirements, or additional or different responsibilities or requirements, than those required by the federal mandate? This administrative regulation does not impose stricter requirements than those required by 42 U.S.C. 1320 a-7I or 42 U.S.C. 5119a(a)(1).

††††† 5. Justification for the imposition of the stricter standard, or additional or different responsibilities or requirements. Not applicable.