§ 135C.33 — Employees and certified nurse aide trainees — child or dependent adult abuse information and criminal record check options — evaluations — application to other providers — penalty

Iowa § 135C.33

• Jurisdiction: Iowa
• Title IV: PUBLIC HEALTH
• Ch. 135C: HEALTH CARE FACILITIES

Text

information and criminal record check options — evaluations — application to other
providers — penalty.
1. a. For the purposes of this section, the term “crime” does not include offenses under
chapter 321 classified as a simple misdemeanor or equivalent simple misdemeanor offenses
from another jurisdiction.
25 HEALTH CARE FACILITIES, §135C.33
b. Priortoemploymentofapersoninafacilityorwithaproviderasspecifiedinsubsection
5, the facility or provider shall do one of the following:
(1) Request that the department of public safety perform a criminal history check and
the record check evaluation system of the department of health and human services perform
child and dependent adult abuse record checks of the person in this state.
(2) Access the single contact repository to perform the required record checks.
c. (1) If a facility or a provider as specified in subsection 5 accesses the single contact
repository to perform the required record checks pursuant to paragraph “b”, the facility
or provider may utilize a third-party vendor to perform a comprehensive preliminary
background check and provisionally employ a person being considered for employment
pending completion of the required record checks through the single contact repository and
the evaluation by the record check evaluation system, as applicable, subject to all of the
following:
(a) If the comprehensive preliminary background check determines that the person being
considered for employment has been convicted of a crime, but the crime does not constitute a
felony as defined in section 701.7 and is not a crime specified pursuant to chapter 708, 708A,
709, 709A, 710, 710A, 711, or 712, or pursuant to section 726.3, 726.27, or 726.28.
(b) If the comprehensive preliminary background check determines the person being
considered for employment does not have a record of founded child abuse or dependent
adult abuse or if an exception pursuant to subsection 4 is applicable to the person.
(c) If the facility or provider has requested an evaluation in accordance with subsection
2, paragraph “a”, to determine whether the crime warrants prohibition of the person’s
employment in the facility or with the provider.
(2) The provisional employment under this paragraph “c” may continue until such time
as the required record checks through the single contact repository and the evaluation by the
record check evaluation system, as applicable, are completed.
d. A facility or provider shall inform all persons prior to employment regarding
the performance of the record checks and shall obtain, from the persons, a signed
acknowledgment of the receipt of the information. A facility or provider shall include the
following inquiry in an application for employment:
Do you have a record of founded child or dependent adult abuse
or have you ever been convicted of a crime other than a simple
misdemeanoroffenserelatingtomotorvehiclesandlawsoftheroad
underchapter321orequivalentprovisions, inthisstateoranyother
state?
2. a. Ifitisdeterminedthatapersonbeingconsideredforemploymentinafacilityorwith
a provider has been convicted of a crime under a law of any state, the department of public
safety shall notify the facility or provider that upon the request of the facility or provider the
record check evaluation system will perform an evaluation to determine whether the crime
warrants prohibition of the person’s employment in the facility or with the provider.
b. (1) If a person being considered for employment, other than employment involving the
operationofamotorvehicle,hasbeenconvictedofacrimelistedinsubparagraph(2)butdoes
not have a record of founded child or dependent adult abuse and the facility or provider has
requested an evaluation in accordance with paragraph “a” to determine whether the crime
warrants prohibition of the person’s employment, the facility or provider may employ the
person for not more than sixty calendar days pending completion of the evaluation.
(2) Subparagraph (1) applies to a crime that is a simple misdemeanor offense under
section 123.47, and to a crime that is a first offense of operating a motor vehicle while
intoxicated under section 321J.2, subsection 1.
c. If a record check evaluation system child or dependent adult abuse record check shows
that such person has a record of founded child or dependent adult abuse, the record check
evaluation system shall notify the facility or provider that upon the request of the facility or
providertherecordcheckevaluationsystemwillperformanevaluationtodeterminewhether
thefoundedchildordependentadultabusewarrantsprohibitionofemploymentinthefacility
or with the provider.
§135C.33, HEALTH CARE FACILITIES 26
d. An evaluation performed under this subsection shall be performed in accordance with
procedures adopted for this purpose by the department of health and human services.
e. (1) If a person owns or operates more than one facility or a provider owns or operates
more than one location, and an employee of one of such facilities or provider locations is
transferred to another such facility or provider location without a lapse in employment, the
facility or provider is not required to request additional criminal and child and dependent
adult abuse record checks of that employee.
(2) If the ownership of a facility or provider is transferred, at the time of transfer the
record checks required by this section shall be performed for each employee for whom there
is no documentation that such record checks have been performed. The facility or provider
may continue to employ such employee pending the performance of the record checks and
any related evaluation.
3. In an evaluation, the record check evaluation system shall consider the nature and
seriousness of the crime or founded child or dependent adult abuse in relation to the
position sought or held, the time elapsed since the commission of the crime or founded
child or dependent adult abuse, the circumstances under which the crime or founded child
or dependent adult abuse was committed, the degree of rehabilitation, the likelihood that
the person will commit the crime or founded child or dependent adult abuse again, and
the number of crimes or founded child or dependent adult abuses committed by the person
involved. If the record check evaluation system performs an evaluation for the purposes of
this section, the record check evaluation system has final authority in determining whether
prohibition of the person’s employment is warranted.
4. a. Except as provided in subsection 1, paragraph “c”, subsection 2, and paragraph “b”
of this subsection, a person who has committed a crime or has a record of founded child
or dependent adult abuse shall not be employed in a facility or with a provider unless an
evaluation has been performed by the record check evaluation system.
b. A person with a criminal or abuse record who is or was employed by a facility or
provider and is hired by another facility or provider shall be subject to the criminal history
and abuse record checks required pursuant to subsection 1. However, if an evaluation
was previously performed by the record check evaluation system concerning the person’s
criminal or abuse record and it was determined that the record did not warrant prohibition
of the person’s employment and the latest record checks do not indicate a crime was
committed or founded abuse record was entered subsequent to that evaluation, the person
may commence employment with the other facility or provider in accordance with the record
check evaluation system’s evaluation and an exemption from the requirements in paragraph
“a” for reevaluation of the latest record checks is authorized. Otherwise, the requirements of
paragraph “a” remain applicable to the person’s employment. Authorization of an exemption
under this paragraph “b” from requirements for reevaluation of the latest record checks by
the record check evaluation system is subject to all of the following provisions:
(1) The position with the subsequent employer is substantially the same or has the same
job responsibilities as the position for which the previous evaluation was performed.
(2) Any restrictions placed on the person’s employment in the previous evaluation by
the record check evaluation system shall remain applicable in the person’s subsequent
employment.
(3) The person subject to the record checks has maintained a copy of the previous
evaluation and provides the evaluation to the subsequent employer or the previous employer
provides the previous evaluation from the person’s personnel file pursuant to the person’s
authorization. If a physical copy of the previous evaluation is not provided to the subsequent
employer, the record checks shall be reevaluated.
(4) Although an exemption under this paragraph “b” may be authorized, the subsequent
employermayinsteadrequestareevaluationoftherecordchecksandmayemploytheperson
while the reevaluation is being performed.
5. a. This section shall also apply to prospective employees of all of the following, if the
provider is regulated by the state or receives any state or federal funding:
(1) An employee of a homemaker-home health aide, home care aide, adult day services,
or other provider of in-home services if the employee provides direct services to consumers.
27 HEALTH CARE FACILITIES, §135C.33
(2) An employee of a hospice, if the employee provides direct services to consumers.
(3) An employee who provides direct services to consumers under a federal home and
community-based services waiver.
(4) An employee of an elder group home certified under chapter 231B, if the employee
provides direct services to consumers.
(5) An employee of an assisted living program certified under chapter 231C, if the
employee provides direct services to consumers.
b. In substantial conformance with the provisions of this section, including the provision
authorizing provisional employment following completion of a comprehensive preliminary
background check, prior to the employment of such an employee, the provider shall request
the performance of the criminal and child and dependent adult abuse record checks. The
provider shall inform the prospective employee and obtain the prospective employee’s
signed acknowledgment. The record check evaluation system shall perform the evaluation
of any criminal record or founded child or dependent adult abuse record and shall make the
determination of whether a prospective employee of a provider shall not be employed by the
provider.
6. a. This section shall also apply to an employee of a temporary staffing agency that
provides staffing for a facility, service, program, or other provider regulated by this section if
the employee provides direct services to consumers.
b. In substantial conformance with the provisions of this section, including the provision
authorizing provisional employment following completion of a comprehensive preliminary
background check, prior to the employment of such an employee, the temporary staffing
agency shall request the performance of the criminal and child and dependent adult abuse
record checks. The temporary staffing agency shall inform the prospective employee and
obtain the prospective employee’s signed acknowledgment. The record check evaluation
system shall perform the evaluation of any criminal record or founded child or dependent
adult abuse record and shall make the determination of whether a prospective employee of a
temporary staffing agency shall not be employed by the assisted living program as defined in
section 231C.2, the Medicare certified home health agency, or the facility, service, program,
or other provider regulated by this section.
c. If a person employed by a temporary staffing agency that is subject to this section is
convicted of a crime or has a record of founded child or dependent adult abuse entered in the
abuse registry after the person’s employment application date, the person shall inform the
temporary staffing agency within forty-eight hours and the temporary staffing agency shall
inform the facility, service, program, or other provider within two hours.
d. If a temporary staffing agency fails to comply with the requirements of this section, the
temporary staffing agency shall be liable to the facility, service, program, or other provider
for any actual damages, including civil penalties, and reasonable attorney fees.
e. This section shall not apply to employees employed by a temporary staffing agency for
a position that does not provide direct services to consumers.
7. a. The department of inspections, appeals, and licensing, in conjunction with other
departments and agencies of state government involved with criminal history and abuse
registry information, shall establish a single contact repository for facilities and other
providers to have electronic access to data to perform background checks for purposes of
employment, as required of the facilities and other providers under this section.
b. The department may access the single contact repository for any of the following
purposes:
(1) To verify data transferred from the department’s nurse aide registry to the repository.
(2) To conduct record checks of applicants for employment with the department.
8. a. If a person employed by a facility, service, or program employer that is subject to
this section is convicted of a crime or has a record of founded child or dependent adult abuse
entered in the abuse registry after the person’s employment application date, the person shall
inform the employer of such information within forty-eight hours of the criminal conviction
or entry of the record of founded child or dependent adult abuse. The employer shall act
to verify the information within seven calendar days of notification. If the information is
verified, the requirements of subsections 2, 3, and 4 regarding employability and evaluations
§135C.33, HEALTH CARE FACILITIES 28
shall be applied by the employer to determine whether or not the person’s employment is
continued. The employer may continue to employ the person pending the performance of
an evaluation by the record check evaluation system to determine whether prohibition of the
person’s employment is warranted. A person who is required by this subsection to inform
the person’s employer of a conviction or entry of an abuse record and fails to do so within the
required period commits a serious misdemeanor.
b. If a facility, service, or program employer receives credible information, as determined
by the employer, that a person employed by the employer has been convicted of a crime or a
record of founded child or dependent adult abuse has been entered in the abuse registry after
employment from a person other than the employee and the employee has not informed the
employer of such information within the period required under paragraph “a”, the employer
shall act to verify the credible information within seven calendar days of receipt of the
credible information. If the information is verified, the requirements of subsections 2, 3, and
4 regarding employability and evaluations shall be applied to determine whether or not the
person’s employment is continued.
c. The employer may notify the county attorney for the county where the employer
is located of any violation or failure by an employee to notify the employer of a criminal
conviction or entry of an abuse record within the period required under paragraph “a”.
9. a. For the purposes of this subsection, unless the context otherwise requires:
(1) “Certifiednurseaidetrainingprogram”meansaprogramapprovedinaccordancewith
the rules for such programs adopted by the department of health and human services for the
training of persons seeking to be a certified nurse aide for employment in any of the facilities
or programs this section applies to or in a hospital, as defined in section 135B.1.
(2) “Student” means a person applying for, enrolled in, or returning to a certified nurse
aide training program.
b. (1) Prior to a student beginning or returning to a certified nurse aide training program,
the program shall do one of the following:
(a) Request that the department of public safety perform a criminal history check and the
record check evaluation system perform child and dependent adult abuse record checks, in
this state, of the student.
(b) Access the single contact repository to perform the required record checks.
(2) If a program accesses the single contact repository to perform the required record
checkspursuanttosubparagraph(1),theprogrammayutilizeathird-partyvendortoperform
acomprehensivepreliminarybackgroundchecktoallowapersontoprovisionallyparticipate
in the clinical component of the certified nurse aide training program pending completion of
the required record checks through the single contact repository and the evaluation by the
record check evaluation system, as applicable, subject to all of the following:
(a) If the comprehensive preliminary background check determines that the person being
considered for provisional participation has been convicted of a crime but the crime does not
constitute a felony as defined in section 701.7 and is not a crime specified pursuant to chapter
708, 708A, 709, 709A, 710, 710A, 711, or 712, or pursuant to section 726.3, 726.27, or 726.28.
(b) If the comprehensive preliminary background check determines the person being
considered for provisional participation does not have a record of founded child abuse or
dependent adult abuse or if an exception pursuant to subsection 4 is applicable to the person.
(c) If the program has requested an evaluation in accordance with subsection 2,
paragraph “a”, to determine whether the crime warrants prohibition of the person’s
provisional participation.
(d) The provisional participation under this subparagraph (2) may continue until such
time as the required record checks through the single contact repository and the evaluation
by the record check evaluation system, as applicable, are completed.
c. If a student has a criminal record or a record of founded child or dependent adult
abuse, the student shall not be involved in a clinical education component of the certified
nurse aide training program involving children or dependent adults unless an evaluation
has been performed by the record check evaluation system. Upon request of the certified
nurse aide training program, the record check evaluation system shall perform an evaluation
to determine whether the record warrants prohibition of the student’s involvement in a
29 HEALTH CARE FACILITIES, §135C.33
clinical education component of the certified nurse aide training program involving children
or dependent adults. The evaluation shall be performed in accordance with the criteria
specified in subsection 3, and the record check evaluation system shall report the results
of the evaluation to the certified nurse aide training program. The record check evaluation
system has final authority in determining whether prohibition of the student’s involvement
in the clinical education component is warranted.
d. (1) If a student’s clinical education component of the training program involves
children or dependent adults but does not involve operation of a motor vehicle, and the
student has been convicted of a crime listed in subparagraph (2), but does not have a
record of founded child or dependent adult abuse, and the training program has requested
an evaluation in accordance with paragraph “c” to determine whether the crime warrants
prohibition of the student’s involvement in such clinical education component, the training
program may allow the student’s participation in the component for not more than sixty
days pending completion of the evaluation.
(2) Subparagraph (1) applies to a crime that is a simple misdemeanor offense under
section 123.47, and to a crime that is a first offense of operating a motor vehicle while
intoxicated under section 321J.2, subsection 1.
e. (1) If a student is convicted of a crime or has a record of founded child or dependent
adult abuse entered in the abuse registry after the record checks and any evaluation have
been performed, the student shall inform the certified nurse aide training program of such
information within forty-eight hours of the criminal conviction or entry of the record of
founded child or dependent adult abuse. The program shall act to verify the information
within seven calendar days of notification. If the information is verified, the requirements
of paragraph “c” shall be applied by the program to determine whether or not the student’s
involvement in a clinical education component may continue. The program may allow the
student involvement to continue pending the performance of an evaluation by the record
check evaluation system. A student who is required by this subparagraph to inform the
program of a conviction or entry of an abuse record and fails to do so within the required
period commits a serious misdemeanor.
(2) If a program receives credible information, as determined by the program, that a
student has been convicted of a crime or a record of founded child or dependent adult abuse
has been entered in the abuse registry after the record checks and any evaluation have
been performed, from a person other than the student and the student has not informed
the program of such information within the period required under subparagraph (1), the
program shall act to verify the credible information within seven calendar days of receipt
of the credible information. If the information is verified, the requirements of paragraph
“c” shall be applied to determine whether or not the student’s involvement in a clinical
education component may continue.
(3) The program may notify the county attorney for the county where the program is
located of any violation or failure by a student to notify the program of a criminal conviction
or entry of an abuse record within the period required under subparagraph (1).
f. If a certified nurse aide training program is conducted by a health care facility and a
student of that program subsequently accepts and begins employment with the facility within
thirty days of completing the program, the criminal history and abuse registry checks of the
student performed pursuant to this subsection shall be deemed to fulfill the requirements for
such checks prior to employment pursuant to subsection 1.

Legislative History

[C77, 79, 81, §135C.36; 81 Acts, ch 60, §3]