TABLE OF CONTENTS I. Introduction...1-1 II. Quick Summary of Background Check Requirements A. Which Facilities or Organizations Must Request Criminal Background Checks on Their Staff and Under Which Law?...2-1 B. Summary Points of the Department of Human Services Background Studies Act and Kari Koskinen Manager Background Check Act...2-3 C. Applicability of Criminal Background Check Requirements to Staff...2-6 D. Disqualifying Crimes Comparison...2-7 III. Background Studies for All Facilities, Agencies and Programs Licensed or Registered by the Departments of Health and Human Services A. Summary...3-1 B. Flow Chart of DHS Background Check Process...3-3 C. Key Definitions...3-4 D. Commonly Asked Questions About Criminal Background Study Provisions for Licensed Providers...3-6 Which providers must request a DHS background study on individuals under this law?.. 3-6 Senior Housing... 3-6 Supplemental Nursing Services Agencies... 3-6 Personnel agencies, educational programs and unlicensed professional services agencies...3-7 Failure to comply with requirements...3-8 What happens when an individual affiliated with an agency is disqualified?...3-8 Individual Responsibilities...3-8 Agency responsibilities...3-9 Which individuals must have background studies?...3-9 Background studies for Home Care or Hospice Providers...3-12 When and how often must individuals be studied?...3-13 MDH-licensed facilities and agencies...3-13 DHS-licensed programs...3-13 Supplemental Nursing Services Agencies or Other Personnel Agencies, Professional Agencies or Educational Programs...3-13
When is only one study required?...3-13 Continuous Affiliation/Breaks in Services Examples...3-14 Background studies for individuals who have already been studied or work for multiple providers...3-14 Repeat Background Studies are Unnecessary for Physicians...3-15 What happens if an individual has a future conviction for a disqualifying crime? How will the provider be notified?...3-15 Who conducts the criminal background studies?...3-16 What information is included in a background study?...3-16 BCA Records...3-16 Maltreatment Records...3-16 Juvenile Records...3-16 What type of information is sought when DHS needs more time to complete a background study?...3-17 Fingerprints...3-17 Border communities...3-18 How does a provider request a criminal background study?...3-18 The background study form...3-18 Facility identification number required on background study form...3-19 Electronic transmission of background study information...3-19 How NETStudy Works...3-19 What happens if an individual refuses to complete the background study form or won t consent to a study?...3-20 How much does it cost to conduct a background study?...3-21 How long will it take to receive a response from DHS on an employee?...3-21 What if the provider knows or has been told that an individual may have a criminal or maltreatment history?...3-22 What are disqualifying events?...3-22 Crimes...3-22 Disqualifications for events other than convictions...3-24 Substantiated Maltreatment Disqualification for Licensed Professionals...3-24 Permanent disqualification for nurse aides...3-25 ii
What information will DHS send to the organization initiating the study?...3-25 The individual is not disqualified...3-25 DHS needs additional time to complete the study...3-26 The individual is disqualified and poses a risk of harm...3-26 Basis for immediate risk of harm determination...3-27 What information will DHS send to the individual who is being studied?...3-28 The individual is not disqualified...3-28 DHS needs additional time to complete the study...3-28 The individual is disqualified...3-29 How does an individual submit a request for reconsideration of a disqualification to the department?...3-30 Who is responsible to initiate the reconsideration process?...3-30 How much time does the individual have to request reconsideration?...3-30 How does an individual request reconsideration?...3-30 What must an individual prove in order to have the disqualification removed or set aside?...3-31 Accuracy Challenges...3-31 Risk of Harm Challenges...3-32 How long will the reconsideration process take?...3-32 How will the licensing department notify the individual and the provider of its reconsideration decision?...3-33 Disqualification set aside...3-33 Immediate removal notice...3-33 What other methods exist to contest a disqualification or have it set aside?...3-33 What are the employment implications?...3-34 Exemption from Criminal Offenders Rehabilitation Act...3-34 Termination...3-34 Civil liability protection...3-34 Unemployment Compensation Claims...3-34 Liability when a study was conducted...3-34 What documentation must an organization maintain in its records?...3-35 iii
IV. Kari Koskinen Manager Background Check Act A. Summary...4-1 B. Process for Conducting Criminal Background Checks under the Koskinen Act (flow chart)...4-2 C. Key Definitions...4-3 D. Commonly Asked Questions About the Kari Koskinen Manager Background Check Act...4-4 What buildings are covered by the Koskinen Act?...4-4 Who must be checked under the Koskinen Act?...4-4 Exceptions...4-5 Home Care Staff...4-5 Senior Home Companion Volunteers...4-5 When must managers be checked?...4-6 Who is authorized by law to conduct these checks?...4-6 Equivalent background checks...4-6 Criminal background check vendors...4-7 How does an owner request a criminal background check?...4-7 Fingerprints...4-9 BCA Fees...4-9 What rights does a manager have under the Koskinen Act...4-10 How long does a background check take?...4-10 What information will the owner receive from the BCA?...4-10 How do I decide which vendor to use to conduct background checks?...4-10 Can an employer pass on the cost of a background check to the subject of the check?...4-12 How often do current employees need to be checked?...4-13 What are the disqualifying crimes under the Koskinen Act?...4-13 What are the exceptions to the disqualification requirement?...4-14 What recourse can be taken when a manager is also a tenant?...4-14 Manager s Rights as a Tenant...4-14 iv
What are the employment implications?...4-15 Notice to manager regarding employment decisions based on criminal background study results...4-15 Immunity...4-15 What is the penalty for non-compliance?...4-16 Additional issues to consider beyond the scope of the Koskinen act...4-17 V. Criminal Background Check Laws Background studies on licensees and supplemental nursing services agency personnel (Minnesota Statutes 144.057)...6-1 Home Care Law requiring background studies on owners and managerial officials (Minnesota Statutes 144A.46, subd. 5)...6-3 Supplemental Nursing Services Agencies (Minnesota Statutes 144A.70 to 144A.74)...6-4 Employers Prohibited from Passing on Background Check Fees to Employees (Minnesota Statutes 181.645)...6-9 Responsibilities of Licensing Boards (Minnesota Statutes 214.104)...6-10 The Department of Human Services Background Studies Act (Minnesota Statutes Chapter 245C)...6-12 Unemployment Insurance (Minnesota Statute, 268.047)...6-57 Kari Koskinen Manager Background Check Act (Minnesota Statutes 299C.66 to 299C.71)...6-59 Criminal Offenders, Rehabilitation (Minnesota Statutes 364.09)...6-64 VI. References Attachment 1: Volunteers Attachment 2: Disqualifying Characteristics (DHS Background Studies Act) Attachment 3: Contractors Attachment 4: Background study order forms Attachment 5: Targeted Misdemeanors Attachment 6A, B & C: Fair Credit Reporting Act information Attachment 7A, B1, & B2: How to read criminal history records Attachment 8: MHCP Provider Enrollment Forms Attachment 9: Consent Forms v