KDHE Home - Division of Health - Bureau of Health Facilities - HOC Home
Frequently Asked Questions - Criminal Background
Checks
KSA 39-970 and KSA 65-5117 - UPDATED 03/01/00
2. What kind of information is sent in and who
sends it to the KBI?
The KBI has certain standard identifying
information that is then compared to information on record. For example, a name
(first, middle, last, suffix) date of birth, sex, race, addresses, social security
number all are important in order to distinguish people. The law requires the
person who operates the adult care home or home health agency to ask KDHE to
compare the identifying information of a person that the operator is considering
for employment or has employed to the information available from the KBI criminal
history records. So, the operator sends the request to KDHE, then KDHE sends
the request to KBI. If there is a "match," KBI sends a summary of
the record to KDHE. The law is specific about what crimes result in a person
being prohibited from employment; if the record shows a conviction of a crime
that is prohibited under the law , a notice is sent to the operator of the facility
or home health agency indicating that the person is prohibited from working.
3. How quickly can we expect a response?
That is unknown due to factors beyond anyone's control. Each person has a different
background, and depending on the ability to provide KBI
with accurate identifying data, running a name check can occur within days or
months. Their data is cumulated by reporting across the state from court documents;
thus, the accuracy of data contributed is as critical as the accuracy of data
against which it is checked. Abstracts are sent to KDHE when there is a "matched"
record. A determination is made according to interpretation of the law; notice
is provided to the operator who submitted the request. For the majority of requests
received, the criminal background check is completed in 10 days or less. KDHE
will only notify the operator if there is a positive match and the individual
is prohibited under the conditions of the law.
The law addresses a provisional employment under subsection (d) ". . . a person who operates an adult care home may hire an applicant for employment on a conditional basis pending the results from the department of health and environment."
4. What do we do if we get notice that someone has a prohibition, and they are already employed?The law provides for civil liability protections under subsection (d) . . . "no adult care home, the operator or employees of an adult care home or an employment agency, or the operator or employees of an employment agency, shall be liable for civil damages resulting from any decision to employ, refuse to employ, or to discharge from employment any person based on such adult care home's compliance with the provisions of this section if . . . [acting] in good faith to comply with this section."
5. What will KDHE do if they find we have someone with a prohibition employed? How will KDHE enforce this and what measures will be taken if a home is found noncompliant? 6. Can't KDHE just bill us for this service or
can't we just pay quarterly?
NO. The legislation did not provide for this type of service. However, adult
care homes and home health agencies now have the option to purchase criminal
background check request forms in advance, eliminating the need to send in any
payment when the forms are processed. The forms may be purchased from Health
Occupations Credentialing for $7.50 each and must be purchased in multiples
of 10. Other than the purchase price, there is no further cost for processing
the request forms. For further information contact the front desk (785) 296-0056
7. How was the fee determined?
The legislation authorizes KDHE to collect a fee equal to cost. The fee is what
it costs KDHE to establish the program including reimbursement to the KBI.
Certain specific interpretations had to be negotiated to keep the costs down
for the industry; for example, the law addresses KBI
being reimbursed for "names" not "persons."
8. How much of that goes to KBI?
KBI has agreed to complete the
background checks on each person for $3.75. This will be revisited as appropriate.
9. If we are currently using a service or KBI
directly do we have to switch to KDHE?
YES. The operator is responsible for not employing anyone who has history of
prohibited offenses. The law specifies that KDHE accesses criminal history information
through KBI records. Most other
sources, services, including the KBI,
would not have accessed juvenile records. Under these laws, certain juvenile
convictions would constitute a prohibition of employment, which is one reason
for accessing information from KBI
through KDHE.
10. Can Department
of Human Resources information be substituted?
NO. The statute requirement is specific to determinants under the law and cites
KDHE as the conduit for the information. There is no reference to the Department
of Human Resources or its information.
11. If a prospective employee fills out the form,
does that automatically allow for consent?
This is the responsibility of the requester. You should seek your own legal
counsel.
12. When will there be regulations?
The statute provides adequate directives to implement the program. Regulations
will be written as appropriate.
13. What is the legality of asking these questions
or requiring this information?
A statute requires it, making it legal. Statutes are presumed to be constitutional
until successfully challenged in the courts.
14. What right does a prospective employee have
regarding this information (what is submitted, or what comes back)?
Individuals generally have the right to know the content of their records. Consult
your own attorney for specific privacy questions. KBI
has specific provisions concerning this issue.
15. What responsibility do I have for the information
KDHE provides me if I don't hire someone based on KDHE criminal conviction data?
The amendments made to the law during the 1998 legislative session allow for
". . . The operator of an adult care home/home health agency where the
applicant was the subject of such background check may release a copy of such
background check to the operator of an adult care home/home health agency where
the applicant is currently applying." Dissemination of criminal history
record information, with limited exceptions, is prohibited. The retention of
criminal history record information is not required. The law further states
". . .No adult care home (or home health agency) the operator or employees
of an adult care home (or home health agency) or employment agency, or the operator
or employees of an employment agency, shall be liable for civil damages resulting
from any decision to employ, to refuse to employ or to discharge from employment
any person based on such adult care home's compliance with the provisions of
this section if such adult care home (home health agency) or employment agency
acts in good faith to comply with this section."
16. Do I have to maintain a file for this information?
KDHE does not require you to maintain a file of this information. You should
seek legal counsel for general file maintenance advice.
17. What kind of security do I have to maintain
for a file containing criminal information, for those I hire and those I don't
hire?
Generally, the information should remain confidential. Seek legal counsel for
specific security requirements.
18. How do we get all aliases?
Obviously, you cannot ever be sure that any information you receive is complete
and accurate. You must make reasonable efforts to get complete information.
19. What about "Consumer Directed Services Program"
of the state? When a client chooses to use a friend or relative as their caretaker
and the person in charge of the hiring decision insist on an individual even
though the individual has a record?
This program refers to certain in-home health care services which may be
coordinated or reimbursed by state or federal health care funds. Persons providing
in-home services under the Consumer Directed Services Program are contracted
by the homebound person to provide care to that person. The home health agency
does not procure or select which provider serves a client under the Consumer
Directed Services Program. Since the provider is selected by the client, under
certain work and service conditions set by the client, the home health agency
is not considered the employer of these individuals and is therefore not required
to submit these individuals for a criminal background check.
20. How do operators handle agency staff?
The law addresses this under subsection (d) . . . any employment agency which
provides employees to work in the adult care home or home health agency [must
provide] written certification that such employees are not prohibited from working
the adult care home or home health agency under this act. The requestor will
be notified of any matches of prohibited offenses.
21. What about convictions in other states or federal
crimes?
The law states, under subsection "(d) . . . for the purpose of complying
with this section, information relating to convictions and adjudications by
the federal government or to convictions and adjudications in states other than
Kansas . . . until the secretary determines [that] . . . such information could
reasonably be . . . obtained within a two-week period." The law is constructed
such that it is the operator's responsibility to not employ anyone with a prohibited
conviction. Therefore, if an operator has evidence or can obtain evidence that
the person would be prohibited, it is his or her responsibility to comply with
the conditions set forth in law. This includes any sources outside the jurisdiction
of KDHE and the KBI.
23. If an employee's name is sent in for background check,
and maintains employment, do they have to be checked again?
It is the responsibility of the operator to comply with the conditions of the
law. Frequency of rechecks is up to the operator. KDHE will provide the service
as indicated by law. Under the ACTION (Adult and Child Care Customer Tracking
Information Online Network) system, the previous requests and results will be
documented. Therefore, KDHE will have a record of the date of request on names
previously submitted and any results. This information is integrated into the
Health Occupations Credentialing Registry and is available on certified staff
upon contact to the Kansas Nurse Aide Registry. A quarterly report is also issued
which lists the names of the individuals which have had a criminal background
check processed during that three month period.
24. If we fire someone because of the background check,
does that count against the facility for unemployment insurance purposes?
This question should be brought to the Department
of Human Resources.
25. What does a facility do if several employees come
back with prohibitions . . . how can we continue to provide services if we have
to immediately fire several employees?
The law is specific concerning the operator's responsibilities. To knowingly
continue to employ a person with a prohibited offense after a background check
would be in violation of the law.
26. Does this apply to long-term care units in
hospitals?
NO. The law applies to any licensed adult care home (or home health agency)
in Kansas. It does not apply to licensed hospitals. It does apply to hospital
based home health agencies.
27. What about residential care or assisted living
facilities which are not required to have an administrator?
The law specifies that operators of an adult care home (or home health agency)
"shall not operate if there works a person with a prohibited offense in
that facility (or home). It is the operator's responsibility to request background
checks. An "operator" of a residential care, assisted living facility,
or boarding home is required to submit criminal background check requests for
any non-licensed or non-registered individual who may be employed.
28. Since this information is coming to KDHE through
the registry (Health Occupations Credentialing), do we have to check only through
the registry?
NO. The criminal background check database does incorporate the information
received from background checks into the KNAR (registry) database, however they
are not the same. Criminal background checks will only be received in writing
and must be accompanied by payment of the associated fees. Currently, if a person
listed on the KNAR has had a background check within the past year, that information
is made available through the registry. Since the law does not require another
criminal background check if one has been done within the past year, providing
this service eliminates the need for submitting the paperwork and fee on that
particular individual. Please note item #23 above.
30. The statute refers to "anyone who works"
in an adult care home . . . what about the person who mows the lawn, or a contractor
who does plumbing or painting, does the law apply to them?
This is interpreted to mean anyone who regularly works, not including an incidental
or emergency repair person or episodic contract labor. If there is any doubt
as to whether a person is covered by the law, a background check should be conducted.
31. Under the exemption for volunteers, does that
include persons who are doing community service for a diversion or criminal
conviction?
It is the position of the department that any operator who allows community
service for a diversion or criminal conviction should carefully analyze the
benefit or risk to the residents or client. The operator should be provided
with adequate information from the person's court representative that would
demonstrate that the person would not be subject to prohibition under the law
if employed. Again, this is an administrative judgment on the part of the operator.
32. What if you have an employee who has been employed
more than five years, has a prohibited conviction and you know it; what do you
do?
The law exempts persons employed in the same facility/agency for five consecutive
years prior to July 1, 1997 (employed on or before June 30, 1992). This is an
administrative judgment on the part of the operator.
33. How many states are working on this issue?
Exact counts are not known. Anecdotal reports indicate a majority of states
have similar types of provisions. Each state has different legal coding systems
thus making interstate comparisons quite laborious.
34. What if you hire someone who has had a criminal
background check in another state? Does that work for Kansas?
NO. There would not be Kansas criminal records information obtained. However,
if you have information from another state that suggests that the person has
a prohibited conviction from the other state, then that person is prohibited
from employment.
35. What about facilities on the state borders,
does a background check in Missouri work for Kansas?
NO. It does not (due to the reasons cited above). Operators should always make
reasonable effort to gather and assimilate background information and references
on any prospective employee.
36. Can a facility charge the employee for the
cost of the background check?
The law does not address that. Check with your legal counsel or Department
of Human Resources.
37. How do you identify a person's race --you don't
have Hispanic or Mexican as choices?
The race categories are in accordance with standards conveyed by the KBI.
Accordingly, Hispanic, Spanish or Mexican is considered ethnicity (not race).
The person for whom the background check is performed should be identifying
his or her own race category.
38. If we've already been doing background checks
-- say we have been sending them in directly to KBI
or another service provider -- do we have to repeat all of those we've already
paid for?
YES. The intent is to have a single-source for accessing criminal records history
information, which the law identifies as KDHE and KBI.
Part of the rationale for this requirement is standardization of record information.
What maybe accessed through county law enforcement or an independent agency
does not include juvenile records. Under the current law, select juvenile convictions
(history) would result in prohibition of employment.
39. What exactly is the employment date that allows
long-term employees to be exempt?
Those employees who have had continuous employment on or before July 1, 1992
are not subject to the background check requirement.
40. Do we have to check all our employees annually?
NO. There is not an annual requirement. However, if a facility or agency sends
in requests on employees annually, KDHE will process the request.
41. Are drug offenses prohibited under the law?
NO. The main prohibitions are those convictions dealing with crimes against
persons, sexual crimes, and crimes affecting family relationships.
42. Do we mail the payment to KBI
since they are charging for the background checks?
NO. You are only obligated to pay $7.50 per person directly to KDHE. KDHE will
take care of the payment to KBI.
43. Do you have a list of all the prohibited convictions?
YES. There is a grid developed which describes the convictions and the prohibition
status for those applicable. Click here to view
prohibited convictions. However, operators do not have to sort through that
level of detail. When a possible matched record is found, research will be conducted
and confirmation of the conviction data and the prohibited conviction will be
made by the department staff. This confirmation will be the basis of the response
notifying the requesting entity. There is the protection for conditional employment
and the protection of liability for employment actions for the operators. KDHE
will analyze the report based upon the law; the requestor will not be required
to analyze the criminal convictions/prohibitions.
44. Can we go ahead and send in all our licensed
nursing staff, even though they are exempted?
NO. This law does not allow KDHE to perform KBI
background checks on licensed health care professions. If you wish to pursue
this, please contact the licensing board of that profession. (This includes
such professions as nurses, social workers, psychologists, physical therapists,
speech therapists, audiologists, physicians and the like.)
45. Does this law apply to the
hospital long-term care units, or assisted living or residential care facilities?
The way to know what facility must comply with this law is to answer the following
questions:
In addition, remember that this is a KANSAS LAW -- it is not part of federal reimbursement programs such as Medicare or Medicaid.
46. We are an Area Agency on Aging and provide some services in the home-do we have to comply with this law? 47. What is the legality of asking about juvenile
convictions? I have 15-16 year-old kids working in laundry, housekeeping and
the kitchen. Do I have the right to send them in?
YES. Not only do you have the right, but it is the law.
49. What if I can't find the right job classification
on the form?
Select the category which is the closest fit. If you have suggested classifications
to be added, please make note in a separate area after you have made a selection.
These will be evaluated.
50. Your job classification includes several titles that are filled by volunteers in our facility. Do we have to submit their names, then? NO. The law describes those who are exempt, including volunteers. It does not specify what the volunteers are doing.
51. How will KDHE determine when a person is no
longer prohibited, since the amended law allows someone to work if five years
have elapsed since completion of their sentencing, etc.?
If no verification is available through the KBI,
the prohibited individual will have to request that the appropriate information
be sent to KDHE from the court of jurisdiction or the Department of Corrections.
52. What do we do if we have employees who work
at several different licensed facilities? Surely we don't have to pay $7.50
and fill out a form for each facility?
NO. Be certain to identify all facility license numbers on the individual's
request form. This assures that the individual has been checked for employment
at each place (site).
53. Does the state (KDHE, KBI)
check for theft convictions and will facilities have access to that information?
NO. The conviction information which is applicable under the prohibition on
employment does not include theft. Information which may be shared is specified
under the law. The amended law allows the operator of an adult care home or
home health agency where the applicant was the subject of such background check
may release a copy of such background check to the operator of an adult care
home or home health agency where the applicant is currently applying. (KSA 39-970
(i) and KSA 65-5117 (i)).
54. Can an individual work after they have had the prohibited offense expunged. Yes, once a certified copy of the expungement order is received, reviewed, and approved by KDHE a letter is issued to the individual's employer declaring the previously issued Notice of Employment Prohibition null and void
55. Can we get a copy of the form to use now?
Click here to download a copy of the form. The form
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