Certain RI health care employers need to revise policies on employee criminal records checks in wake of new law

By Sheri L. Pizzi and Greg Vanden-Eykel

A new Rhode Island law requires mandatory criminal records checks of new employees of home health care facilities, nursing care providers, hospice providers, and nursing facilities, and, as a result, these employers must revise their policies and practices to comply with the new law.

What does the new law require home health care facilities to do?

Home health care facilities, nursing care providers, hospice providers, and nursing facilities (collectively “Facilities”) under the amendments to existing law must conduct a national criminal records check on all employees hired on or after Oct. 1, 2014. Prior to these amendments, employers were only required to undertake state criminal background record checks. The new national criminal records check will include the submission of the employee’s fingerprints to the FBI.

The law requires the initiation of the national criminal records checks prior to the employee’s start date, or within one week of employment.

To whom do the amendments apply?

The amendments apply to employees of nursing facilities, home nursing care providers, hospice providers, and home care providers who are required to be licensed, registered, or certified by the Department of Health. Specifically, the amendments apply to employees who have “routine contact with a patient or resident without the presence of other employees” or routine contact with that client’s belongings or funds.

Although regulations implementing the amendments have not yet been drafted, in the interim the Director of the Department of Health is permitted to identify those positions requiring national criminal records checks.

Who pays for the national criminal record check?

It is an employee’s responsibility to pay for the national criminal records check. The national criminal records check fee is $35, and the employee must submit his/her application to the Office of the Attorney General (150 South Main Street, Providence). The Office of the Attorney General intends to disseminate more information concerning this process on its website in the near future. In the meantime, according to the Attorney General’s office, the $35 fee is a one-time application fee to cover the costs of fingerprinting the new employee. Once the employee is fingerprinted, he or he will not have to pay a subsequent fee, even if he or she changes employers on or after Oct. 1, 2014. The Attorney General’s office in Providence will conduct the fingerprinting.

What about employees hired before Oct. 1, 2014?

Employees hired on or before Sept. 30, 2014 are not required to undergo new national criminal records checks. However, if a Facility re-hires an employee on or after Oct. 1, 2014, that employee must undergo a new national criminal records check. Similarly, if a person was an employee of Facility A before Oct. 1, 2014, but transfers to Facility B on or after that date, that employee must undergo a new national criminal records check.

Facilities must maintain a file for all employees who sought employment with the Facility between Oct. 1, 1991 and Sept. 30, 2014. Each file must contain the results of those employees’ and/or applicants’ previous criminal background check. The statute does not specify how long employers are required to keep these records. These files are subject to random inspection by the Rhode Island Department of Health.

How are results of the national criminal records check disseminated to Facilities?

If the Attorney General’s office receives any disqualifying information concerning the person seeking employment, it will notify the Facility in writing without disclosing the details of the disqualifying information to the Facility. The new law does not specify when the Attorney General is required to notify the Facility of any disqualifying information.

The Attorney General’s office will also notify the disqualified person in writing. However, the disqualified person’s notice from the Attorney General will include the details of the disqualifying information. Thereafter, the disqualified person may elect to provide the detailed disqualifying report to the Facility with which he /she seeks employment, and the Facility has the discretion to make a judgment concerning continued employment.

How can Facilities check on the status of an employee’s national criminal records check?

According to the Attorney General’s office, beginning on or around Dec. 1, 2014, Facilities will have access to a web portal system that will allow them to view the status of an employee or prospective employee’s national criminal records check. There will be a one-time fee for each Facility associated with accessing the web portal system. The fee has yet to be determined, but is capped at $100. Facilities will be granted an unlimited number of users within their administration and human resources departments who can access the web portal.

The Attorney General’s Office and the Department of Health intend to conduct a web portal training program in early November 2014.

Importantly, although Facilities are not barred from continuing to use third-party vendors to conduct national background checks, the Attorney General’s Office and the Department of Health will not recognize these checks as compliant with this new statutory scheme. Therefore, it is advisable for Facilities to use the web portal system to facilitate all national background checks.

How do Facilities process national criminal records checks prior to Dec. 1, 2014?

Until the new web portal system is operating, the national background check process will follow the same process as other civil background checks currently in place. The applicant must present a conditional letter of employment to the Attorney General’s Office BCI unit and the background check will be initiated following the fingerprinting of the applicant.

What is disqualifying information?

Disqualifying information is information pertaining to a conviction for a litany of specific felonies set forth in the statute. Conviction refers to judgments of conviction entered by a court subsequent to a guilty finding, guilty pleas, and pleas of nolo contendere, where the person also received a sentence of probation or where the person entered into a deferred sentence agreement with the Attorney General.

How should Facilities manage background checks on juvenile employees and volunteers?

According to the Attorney General’s Office, Facilities must mail the consent and disclaimer forms to the Office of the Attorney General, BCI Division, 150 South Main Street, Providence, RI 02903, Attention: Chief William Karalis. Consent and disclaimer forms must be completed in their entirety and include a self-addressed stamped envelope for the Attorney General’s Office to use to return the results. The Attorney General’s Office recommends that Facilities abstain from sending juveniles and their parents into the Office of the Attorney General to submit their forms.

How should Facilities respond to the amendments?

First, Facilities should conduct an inventory of all current employee personnel files to ensure that criminal records check information is included. Under the amendments, failure to maintain these files could result in loss of license or registration.

Second, Facilities should ensure that they are prepared to create files that contain evidence that national criminal record checks were initiated for all persons seeking employment on or after Oct. 1, 2014. Facilities must maintain the results of all such checks.

Third, Facilities should update employment and personnel policies and procedures to reflect compliance with the amendments for adult and juvenile employees and volunteers. Policies should include uniform procedures for decision-making with respect to continued employment of persons receiving disqualifying reports.

Fourth, Facilities should train employees with hiring authority and human resources responsibilities regarding the new record keeping requirements and employee responsibilities. Facilities should also identify staff who will receive web portal training. Careful planning now will permit Facilities to provide accurate information to persons seeking employment, and will help to ensure that Facility records comply with the new law.

Sheri is a partner in the firm’s Providence office and Greg is an associate in the Boston office. Their practices include providing employment law guidance to employers, including health care providers.