§ 20-77-128 — In-home caregiver drug tests and criminal background checks - Definitions

(a) As used in this section: (1) "Caregiver" means an individual who has responsibility for the protection, in-home care, or custody of a Medicaid enrollee as a result of assuming the responsibility by contract; and (2) "Registry records check" means the review of one (1) or more database systems maintained by a state agency that contain information relative to the suitability of a person to be a caregiver. (b) (1) A caregiver shall submit to a drug screen that tests for the use of illegal drugs through a program established by the Department of Human Services. (2) A drug screen under this section shall be administered to: (A) A caregiver on or after September 1, 2013; and (B) (i) A random sampling of caregivers on or after September 1, 2013. (ii) The random sampling shall be designed to ensure that each caregiver is tested for illegal drug use under this section at least one (1) time every five (5) years. (iii) A caregiver who has been tested through a home health agency within the previous five (5) years for the use of illegal drugs may satisfy the testing requirement under this subsection by providing verification of the home health agency test. (3) (A) A caregiver who refuses to submit to a drug screen required under this section or who tests positive for the use of illegal drugs in a drug screen required under this section shall be ineligible for employment paid with Medicaid funds for six (6) months after the date of the refusal or the date of the positive test result. (B) (i) After the six-month period under subdivision (b)(3)(A) of this section, the caregiver may volunteer to undergo a new test for the use of illegal drugs under this section. (ii) If the caregiver tests positive for the use of illegal drugs in a voluntary drug screen under this section, the caregiver shall be ineligible for future employment paid with Medicaid funds. (c) (1) The department shall: (A) Require a state criminal background check of a caregiver and of an applicant to become a caregiver by the Identification Bureau of the Division of Arkansas State Police that conforms to the applicable standards; (B) For a person who has not resided continuously in Arkansas during the previous five (5) years, require a federal criminal background check of a caregiver and of an applicant to become a caregiver by the Federal Bureau of Investigation that conforms to the applicable standards and includes the taking of fingerprints; and (C) Require a registry records check of a caregiver and of an applicant to become a caregiver, including without limitation registry records checks with the Child Maltreatment Central Registry and the Adult and Long-term Care Facility Resident Maltreatment Central Registry. (2) A caregiver or an applicant to become a caregiver shall pay for the payment of any fee associated with the registry records check and the criminal background check required under this subsection. (3) (A) Before a criminal background check is performed, a caregiver or an applicant to become a caregiver shall sign a release authorizing the criminal background check. (B) Before a registry records check is performed, a caregiver or applicant to become a caregiver shall sign a release authorizing the registry records check. (4) Upon completion of the criminal background check, the Identification Bureau of the Division of Arkansas State Police shall forward to the department information obtained concerning the caregiver or applicant to become a caregiver including whether the caregiver or applicant to become a caregiver has pleaded guilty or nolo contendere to or has been found guilty of a felony or crime involving moral turpitude or dishonesty. (5) The results of the registry records check and the criminal background check shall be used by the department to determine the suitability of: (A) An applicant to become a caregiver paid with Medicaid funds; or (B) A caregiver for continued employment paid with Medicaid funds. (6) (A) A caregiver or applicant to become a caregiver who has pleaded guilty or nolo contendere to or has been found guilty of a felony or crime involving moral turpitude or dishonesty shall not be employed to provide services paid with Medicaid funds. (B) A caregiver or applicant to become a caregiver who is on either the Child Maltreatment Central Registry or the Adult and Long-term Care Facility Resident Maltreatment Central Registry shall not be employed to provide services paid with Medicaid funds. (7) The registry records check and the criminal background information of a caregiver or applicant to become a caregiver is confidential. (d) (1) The Department of Human Services shall adopt rules to implement this section. (2) If necessary, the Department of Human Services shall seek a waiver from the Centers for Medicare & Medicaid Services for approval of the rules adopted under this section.

Legislative History

Amended by Act 2021, No. 717,§ 2, eff. 7/28/2021. Amended by Act 2021, No. 717,§ 1, eff. 7/28/2021. Added by Act 2013, No. 1336,§ 1, eff. 8/16/2013.