11/23/2016
Hello Everyone, I hope all is well. I am extremely late for my promised monthly subject, God willing, I will be more timely.
This month's topic will be as follows;
Criminal History Record Checks:
6 CCR 1011-1 Chapter XXVI Home Care Agencies of Section 6.3 defines Colorado requirements.
(Chapter XXVI Rules and Regulations apply to ALL LICENSED Home Health Agencies in the State of Colorado, this is inclusive of Class A/ Skilled and Class B/Non-Skilled Agencies, and EVERY Medicare/Medicaid Agency is required to be LICENSED).
Section 6.3(A) specifically states - On or after June 1, 2009 the HCA shall require any individual seeking employment with the agency to submit to a criminal history record check.
1) The verbiage "shall" dictates this is not an option, but must be done by the agency.
2) This clause does not dictate/indicate that an agency must conduct a multiple state record check ($40.00 plus), only a Colorado record check ($6.95). However, if the application reveals employment in other states or a gap in employment, a multi-state record check is personally recommended.
3) THIS IS A POLICY/PROCEDURE REQUIREMENT.
Section 6.3(B) specifically states - The criminal record check shall be conducted not more than 90 days prior to employment of the individual.
1) Honestly, most experienced agencies do not hire every individual that submits an application. Additionally, some applicants are placed in a file until the availability arises.
- In the above mentioned situation, this regulation applies to you. Example: Jane Doe applies in January, Agency has no openings- but you processed J. Doe for future availability including a CBI.
(Hopefully agency does not have an employee "hire" greater than ten (10) days without an active assignment).
Agency needs J.Doe in June. A new CBI is required because the processing and CBI are greater than 90 days of employment, If agency needs J. Doe in February, a new CBI is not required.
2) THIS IS A POLICY/PROCEDURE REQUIREMENT.
Section 6.3(C) specifically states - The cost of such inquiry shall be paid by either the home care agency or the individual seeking employment.
1) Agency P/P may dictate that said agency will pay for the cost of the CBI.
2) Agency P/P may dictate that said applicant will pay for the CBI.
- Number 2 is highly unlikely, as this is equivalent to the emotional distress associated with an apartments application fee. (neither one is guaranteed, but you want my money first...lol).
3) Agency P/P may dictate that "This requirement for payment will be determined on an individual basis,
- This can alleviate extra costs associated with an out of state applicant with a "book" for a record check, and the reporting agency charges by the page.
4)THIS IS A POLICY/PROCEDURE REQUIREMENT.
Section 6.3(D) specifically states - The HCA shall develop and implement policies and procedures regarding the employment of any individual who is convicted of a felony or misdemeanor to ensure that the individual does not pose a risk to the health, safety and welfare of the consumer.
1) Most agencies have begged, borrowed, &/or stolen P/P from other agencies and adopted them as their own. The above mentioned P/P and "generic" P/P purchased online or form consultants contain language that has NEVER been reviewed by said agency.
- This behavior/oversight usually results in a Deficiency &/or the inability to hire/secure appropriate employees.
- Most P/P suggest than an applicant with a criminal record are excluded from employment.
- Where can you find an applicant without a criminal record for approximately $8 - 10.00 an hour.
2) This regulation DOES NOT dictate the Non-Hiring status for employment.
- This regulation gives the agency control over employment hiring and considerations.
3) The first key word is "CONVICTED".
-Please request the disposition of a charge, if the CBI does not reflect it, as ;
- NOT every charge results in a Conviction.
4) The second key word is "FELONY".
- Most Felonies have a "Statue" on Limitations for continued exclusions.
- I believe EEO Laws require a Felony "Statue of Limitations" after a 7 or 10 year period when considering employment.
- Consider the nature of the felony, age of applicant at time of felony, circumstances of felony, plea deal(s), and etc.
- Must be a Felony Conviction. NOT a Felony Charge to be inclusive of the governing of said regulation.
5) The third key word is "MISDEMEANOR".
-Please be aware that running a red light, driving without insurance, littering, loitering, domestic violence, loud music, and etc. can be Misdemeanors, but should not prohibit a person from employment.
- Again, consider the nature, age of applicant, and circumstances when making a decision.
- This must be a Misdemeanor Conviction, NOT a Misdemeanor Charge to be inclusive of the governing of said regulation.
6) Last, but most important is "Ensuring that the individual DOES NOT pose a risk to the health, safety and welfare of the consumer".
- Agency must have a plan and P/P that addresses hiring, supervision, and tracking (if appropriate) of said individuals.
7) THIS IS A POLICY/PROCEDURE REQUIREMENT.
OPTIONAL P/P: 6.3(D) - Accepting an applicant for employment with a Felony and/or Misdemeanor conviction will be determined on an individual basis.
A Felony and/or Misdemeanor conviction DOES not automatically bar a person from employment.
1) Can I hire an applicant charged with Murder?
- Yes, regulation is not applicable.
-Should I ?
- Maybe, depending on circumstances = Self Defense.
2) Can I hire an applicant convicted of Murder?
- Yes, depending on P/P.
-Should I ?
- Maybe, depending on circumstances = Self Defense.
3) Can I hire a 38 year old applicant charged with theft at 18 ?
- Yes, regulation is not applicable.
-Should I ?
- Maybe, depending on circumstances = I would, applicant is 28 years free of any additional charges and was barely an adult when charge occurred.
4) Can I hire a 38 year old applicant convicted of theft at 18 ?
- Yes, depending on P/P.
-Should I ?
- Maybe, depending on circumstances = I would, applicant is 28 years free of any additional charges/convictions and was barely an adult when conviction occurred.
5) Can I hire a 50 year old applicant charged or convicted of stealing narcotics last year ?
- Yes, regulation is not applicable to charged, ad depending on P/P with conviction.
-Should I ?
- Maybe, depending on circumstances = I would not, unless court services are involved. I would then require assignments with clients absent of narcotics, monitoring of missing medications and pain control with assigned clients for a specific period of time, unannounced supervisory visits, and a specific agreement for drug testing with appropriate parameters.
FYI: Don't forget to have a standard CBI or criminal record check form completed and signed by applicant prior to requesting a CBI or criminal record check form.
If anyone in our "Beautiful State of Colorado" has any questions, please feel free to contact me.
If this material was helpful/beneficial, Please kindly "like" and/or write a positive review.
Sincerest Thanks,
Velma L. Gilbert.
Senior Instructor / Consultant for APOM.