Earlier this month the Arkansas Legislature declared an emergency exists due to a shortage of personnel who are ready and willing to provide personal services to citizens needing assistance immediately. As a result, the State Legislature passed Act 990 which became effective immediately. The new legislation amends various sections of Arkansas Code § 20-38 pertaining to criminal background check requirements applicable to a variety of health care service providers.
Act 990 gives a long-term care facility the ability to hire or continue to employ an individual who may otherwise be disqualified from employment based on criminal history. It outlines a waiver process for long-term care facilities that want to employ persons with certain non‑violent criminal histories. A service provider may employ persons if the conviction or plea of guilty, or nolo contendere, was for any of the following non-violent offenses:
- theft by receiving;
- financial identity fraud;
- resisting arrest;
- criminal impersonation in the second degree;
- interference with visitation;
- interference with court-ordered visitation;
- prostitution; and
- patronizing a prostitute
Other required conditions to satisfy the waiver provisions include that, subsequent to employment, the person does not plead guilty or nolo contendere to or is found guilty of any offense listed in Arkansas Code 20-38-105.(b). Some of those offenses include crimes such as murder, battery, assault and kidnapping. Additionally, the person must not have a true or founded report of child or adult maltreatment in a central registry.
Once a service provider determines that an applicant or employee is not disqualified from employment because the person satisfies the criteria for a waiver, it must provide written notice to the licensing or certifying health care agency of the person’s identity. The person must have completed probation or parole supervision, paid all court ordered fees or fines, including restitution, and fully complied with all court orders pertaining to the conviction or plea. Finally, the person must remain in the employment with the same service provider. Documentation must be maintained by the service provider showing that the person met the criteria for the waiver, including the written acknowledgment by the licensing or certifying authority.
A “service provider” under the Act includes Assisted Living Facilities, Residential Care Facilities, Nursing Homes, Intermediate Care Facilities, Adult Day Care and Adult Day Health Care Facilities, Alzheimer’s Special Care Units, Post-Acute Head Injury Facilities, Child Care Facilities or church-exempt child care facilities.
Licensed professionals, such as, physicians, surgeons, nurses, counselors, occupational therapists, physical therapists, pharmacists, speech-language pathologists and audiologists, psychologists, and psychological examiners, and podiatrists, who otherwise may not be subject to a criminal history records check, would be required under the new legislation to undergo a records check if they qualify for employment under the waiver process described here.