Arkansas Administrative Code › Agency 016 - DEPARTMENT OF HUMAN SERVICES › Division 06 - Medical Services › Rule 016.06.05-050 - Rules for Conducting Criminal Record Checks for Employees of Long Term Care Facilities

Current through Register Vol. 49, No. 6, June, 2024
AUTHORITY
The following rules and regulations for the requirement of
				criminal record checks for certain employees of long term care facilities in
				the State of Arkansas are duly adopted and promulgated by the Arkansas
				Department of Health and Human Services, Division of Medical Services, Office
				of Long Term Care, pursuant to the authority expressly conferred by Arkansas
				Code Ann. § 20-33-201 et seq. (Act 990 of 1997, Act 1467 of 1999, Act 1409
				of 1999, Act 1710 of 2001, Act 1382 of 2003, Act 1393 of 2003 and Act 1087 of
				2003).
If any provisions of these rules and regulations, or the
				application thereof to any person or circumstances is held invalid, such
				invalidity shall not affect other provisions or applications which can be given
				effect without the invalid provision or application, and to this end the
				provisions hereof are declared severable.
Individuals and qualified entities are immune from suit or
				liability for damages for acts or omissions, other than malicious acts or
				omissions, occurring in the performance of duties imposed by Act 990 of
				1997.
"The Arkansas Department of Health and Human Services is in
				compliance with Titles VI and VII of the Civil Rights Act and operated, managed
				and delivers services without regard to age, religion, disability, political
				affiliation, veteran status, sex, race, color or natural origin."
If you need this material in a different format, such as large
				print, contact our Americans with Disabilities Act Coordinator at (501)
				682-6880 (voice) or 682-8933 (TDD).
100
DEFINITIONS
As used in these regulations the following definitions shall
				apply unless the policy clearly states otherwise.
Bureau
- The Identification Bureau of
				the Department of the Arkansas State Police.
Care
- The treatment, services,
				assistance, education, training, instruction or supervision for which the
				care-giving person or entity is reimbursed either directly to or by arrangement
				with a qualified entity or receives reimbursement or payment either directly or
				indirectly from Medicaid.
Determination
- The licensing agency's
				determination that an applicant or employee is or is not disqualified from
				employment, or that a qualified entity is disqualified from licensure, based on
				the criminal history of the employee or operator.
Elderly
- Persons aged 65 years or
				older.
Employee
- Any person who provides
				care to the elderly or to individuals with disabilities or both on behalf of,
				under the supervision of, or by arrangement with a qualified entity or any
				person employed by a qualified entity, including persons provided by or
				pursuant to contract with a private placement agency or contract staffing
				agency, unless the person is a family member, a volunteer or works in an
				administrative capacity and does not provide direct patient care. For purposes
				of these rules and regulations, "employee" includes persons provided by or
				pursuant to contract with an outside vendor who provide care with access to
				residents in long term care facilities.
Employment Clearance Registry (ECR
) -
				An automated voice response database system maintained by the Office of Long
				Term Care of previously conducted criminal record checks that result in the
				employment disqualification of an individual. This database also contains
				employment disqualification information on individuals based on substantiated
				administrative findings of patient abuse, neglect or theft against employees of
				long term care facilities.
Individuals with Disabilities
-
				Persons with a mental or physical impairment who require assistance to perform
				one or more of the following tasks of daily living; feeding, mobility,
				toileting, or medication.
Index
- The database maintained by the
				Bureau of criminal record checks that have been conducted on applicants for
				employment with, and employees of, or operators of qualified entities.
Licensing Agency
- The government
				agency (Department of Health and Human Services/Division of Medical
				Services/Office of Long Term Care) charged with licensing the operator or
				qualified entity to provide care to the elderly or to individuals with
				disabilities or both.
National Criminal History Check
- A
				review of national criminal records maintained by the Federal Bureau of
				Investigation (FBI) based on fingerprint identification or other positive
				identification methods.
Operator
- A person responsible for
				signing an application for an initial or renewal license to operate a qualified
				entity.
Qualified Entity
- A long term care
				facility as defined by A.C.A. §
									20-10-101
				or
				20-10-702;
				"..a nursing home, residential care facility, post-acute head injury retraining
				and residential care facility, or any other facility which provides long term
				medical or personal care" whether or not the entity has applied for or
				possesses any license necessary for operation. Note: Additional qualified
				entities covered by Ark. Code Ann. § 20-33-201 et seq.. include home
				health agencies and hospice providers. These qualified entities shall be
				performing their criminal record checks through their licensing agency, the
				Arkansas Department of Health and Human Services/Division of Health Facility
				Services. Also covered are individuals or entities who provide services
				designated as Elderchoices providers. These qualified entities shall be
				performing their criminal record checks through the Department of Health and
				Human Services/Division of Aging and Adult Services.
Report
- A statement of the criminal
				history of an applicant, employee, or operator issued by the Bureau.
State Criminal History Check
- A
				review of state criminal records conducted by the Identification Bureau of the
				Arkansas State Police.
200
IMPLEMENTATION
201 Effective October 1, 1997, long term care
			 facilities shall not knowingly employ or hire a person who has been found
			 guilty or has pled guilty or nolo contendere to any of the offenses listed
			 below by any court in the State of Arkansas or any similar offense by a court
			 in another state or of any similar offense by a federal court.
1. Capital murder, as prohibited in A.C.A.
			 §
										5-10-101;
2. Murder in the first degree and second
			 degree, as prohibited in A.C.A. §
										5-10-102
			 and
			 5-10-103;
3. Manslaughter, as prohibited in A.C.A.
			 §
										5-10-104;
4. Negligent homicide, as prohibited in
			 A.C.A. §
										5-10-105;
5. Kidnapping, as prohibited in A.C.A. §
			 5-11 -102;
6. False imprisonment in
			 the first degree, as prohibited in A.C.A. § 5-11 -103;
7. Permanent detention or restraint, as
			 prohibited in A.C.A. § 5-11 -106;
8. Robbery, as prohibited in A.C.A. §
										5-12-102;
9. Aggravated robbery, as prohibited in
			 A.C.A. §
										5-12-103;
10. Battery , as prohibited in A.C.A. §
										5-13-201,
			 5-13-202,
			 and
			 5-13-203;
11. Aggravated assault, as prohibited in
			 A.C.A. §
										5-13-204;
12. Introduction of controlled substance into
			 body of another person, as prohibited in A.C.A. §
										5-13-210;
13. Terroristic threatening in the first
			 degree, as prohibited in A.C.A. §
										5-13-301;
14. Rape or carnal abuse in the first degree,
			 second degree, and third degree, as prohibited in A.C.A. §
										5-14-103 -
			 5-14-106;
15. Sexual assault in the first degree,
			 second degree, third degree and fourth degree, as prohibited in A.C.A.
			 §§
										5-14-124
			 -
			 5-14-127
			 or sexual abuse in the first degree and second degree, as prohibited in A.C.A.
			 §
										5-14-108 and
			 5-14-109;
16. Sexual indecency with a child, as
			 prohibited in A.C.A. §
										5-14-110
			 or sexual solicitation of a child, as prohibited in A.C.A. §
										5-14-110;
17. Violation of a minor in the first degree
			 and second degree, as prohibited in A.C.A. §
										5-14-120 and
			 5-14-121;
18. Incest, as prohibited in A.C.A. §
										5-26-202;
19. Offenses against the family, as
			 prohibited in A.C.A. §
										5-26-303
			 -
			 5-26-306;
20. Endangering the welfare of incompetent
			 person in the first degree, as prohibited in A.C.A. §
										5-27-201;
21. Endangering the welfare of a minor in the
			 first degree, as prohibited in A.C.A. §
										5-27-203;
22. Permitting child abuse, as prohibited in
			 subdivisions (a)(1) and (a)(3) of A.C.A. §
										5-27-221;
23. Engaging children in sexually explicit
			 conduct for use in visual or print media, transportation of minors for
			 prohibited sexual conduct, or pandering or possessing visual or print medium
			 depicting sexually explicit conduct involving a child, or use of a child or
			 consent to use of a child in a sexual performance by producing, directing, or
			 promoting a sexual performance by a child, as prohibited in A.C.A. §
										5-27-303,
			 5-27-304,
			 5-27-305,
			 5-27-402,
			 and
			 5-27-403;
24. Felony adult abuse, as prohibited in
			 A.C.A. §
										5-28-103;
25. Theft of property, as prohibited in
			 A.C.A. §
										5-36-103;
26. Theft by receiving, as prohibited in
			 A.C.A. §
										5-36-106;
27. Arson, as prohibited in A.C.A. §
										5-38-301;
28. Burglary, as prohibited in A.C.A. §
										5-39-201;
29. Felony violation of the Uniform
			 Controlled Substances Act, as prohibited in A.C.A. §
										5-64-401;
30. Promotion of prostitution in the first
			 degree, as prohibited in A.C.A. §
										5-70-104;
31. Stalking, as prohibited in A.C.A. §
										5-71-229;
32. Criminal attempt, criminal complicity,
			 criminal solicitation, or criminal conspiracy, as prohibited in A.C.A. §
										5-3-201,
			 5-3-202,
			 5-3-301,
			 and
			 5-3-401,
			 to commit any of the offenses listed in this section.
33. Forgery, as prohibited in A.C.A. §
										5-37-201;
34. Breaking or entering, as prohibited in
			 A.C.A. §
										5-39-202;
35. Obtaining a controlled substance by
			 fraud, as prohibited in A.C.A. §
										5-64-403;
36. Computer child pornography, as prohibited
			 in A.C.A. §
										5-27-603;
			 and
37. Computer exploitation of a
			 child in the first degree, as prohibited in A.C.A. §
										5-27-605.
201.1 Except as provided in Section 201.2
			 below, a conviction for an offense listed in Section 201 shall not disqualify
			 an employee or applicant for employment if the date of conviction of the
			 offense is at least ten (10) years from the date of the application for the
			 criminal record check pursuant to these regulations and the individual has no
			 criminal convictions of any type or nature during the ten-year
			 period.
201.2 Because of the
			 serious nature of the offense and close relationship to the type of work that
			 is to be performed, the following shall result in permanent disqualification of
			 employment:
1. Capital murder, as prohibited
			 in A.C.A. §
											5-10-101;
2. Murder in the first and second degree, as
			 prohibited in A.C.A. §§
											5-10-102
			 and
			 5-10-103;
3. Kidnapping, as prohibited in A.C.A. §
			 5-11 -102;
4. Rape or carnal abuse
			 in the first, second and third degree, as prohibited in A.C.A. §§
											5-14-103 -
			 5-14-106;
5. Sexual assault in the first degree and
			 second degree, as prohibited in A.C.A. §§
											5-14-124
			 and
			 5-14-125
			 or sexual abuse in the first and second degree, as prohibited in A.C.A.
			 §§
											5-14-108 and
			 5-14-109;
6. Endangering the welfare of an incompetent
			 person in the first degree, as prohibited in A.C.A. §
											5-27-201;
7. Felony adult abuse, as prohibited in
			 A.C.A. §
											5-28-103;
			 and
8. Arson, as prohibited in
			 A.C.A. §
											5-38-301.
201.3 Whenever a criminal record
			 check is performed on a person under the provisions of these regulations, the
			 person will be disqualified for employment, licensure, or any other purpose if
			 it is determined that the person committed a violation of any sexual offense
			 formerly proscribed under Arkansas Code §§
										5-14-101 through
			 5-14-127
			 (prior to July 2003) that is substantially equivalent to any sexual offense
			 presently listed in Arkansas Code §§
										5-14-101 through
			 5-14-127
			 and is an offense screened for in a criminal record check. These include the
			 criminal offenses listed in these regulations in Section 201 as follows:
14. Carnal abuse in the first degree, second
			 degree and third degree, as prohibited in A.C.A. §
											5-14-106;
15. Sexual abuse in the first degree and
			 second degree, as prohibited in A.C.A. §
											5-14-108 -
			 5-14-109;
16. Sexual solicitation of a child, as
			 prohibited in A.C.A. §
											5-14-110;
17. Violation of a minor in the first degree
			 and second degree, as prohibited in A.C.A. §§
											5-14-120 and
			 5-14-121.