135C.33 - EMPLOYEES -- CHILD OR DEPENDENT ADULT ABUSE INFORMATION AND CRIMINAL RECORD CHECKS -- EVALUATIONS -- APPLICATION TO OTHER PROVIDERS -- PENALTY.
135C.33 EMPLOYEES -- CHILD OR DEPENDENT ADULT ABUSE
INFORMATION AND CRIMINAL RECORD CHECKS -- EVALUATIONS -- APPLICATION
TO OTHER PROVIDERS -- PENALTY.
1. Prior to employment of a person in a facility, the facility
shall request that the department of public safety perform a criminal
history check and the department of human services perform child and
dependent adult abuse record checks of the person in this state. A
facility 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 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, in this state or any other
state?"
2. a. If it is determined that a person being considered for
employment in a facility has been convicted of a crime under a law of
any state, the department of public safety shall notify the licensee
that upon the request of the licensee the department of human
services will perform an evaluation to determine whether the crime
warrants prohibition of the person's employment in the facility.
b. If a department of human services child or dependent adult
abuse record check shows that such person has a record of founded
child or dependent adult abuse, the department of human services
shall notify the licensee that upon the request of the licensee the
department of human services will perform an evaluation to determine
whether the founded child or dependent adult abuse warrants
prohibition of employment in the facility.
c. An evaluation performed under this subsection shall be
performed in accordance with procedures adopted for this purpose by
the department of human services.
d. (1) If a person owns or operates more than one facility,
and an employee of one of such facilities is transferred to another
such facility without a lapse in employment, the facility 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 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 may continue to
employ such employee pending the performance of the record checks and
any related evaluation.
3. In an evaluation, the department of human services 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 department of human services performs an
evaluation for the purposes of this section, the department of human
services has final authority in determining whether prohibition of
the person's employment is warranted.
4. a. Except as provided in paragraph "b" and subsection
2, 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
licensed under this chapter unless an evaluation has been performed
by the department of human services.
b. A person with a criminal or abuse record who is employed
by a facility licensed under this chapter and is hired by another
licensee without a lapse in employment shall be subject to the
criminal history and abuse record checks required pursuant to
subsection 1. If an evaluation was previously performed by the
department of human services 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 licensee while the department of human
services' evaluation of the latest record checks is pending.
Otherwise, the requirements of paragraph "a" remain applicable to
the person's employment.
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.
(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, 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 department of human services 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. The department of inspections and appeals, 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.
7. 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 forty-eight hours of notification. If
the information is verified, the requirements of subsections 2, 3,
and 4 regarding employability and evaluations 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 department of human services
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 forty-eight hours 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".
Section History: Recent Form
94 Acts, ch 1130, §12; 97 Acts, ch 42, §1; 98 Acts, ch 1141, §2;
98 Acts, ch 1223, §20, 21; 99 Acts, ch 96, §11; 99 Acts, ch 114, §5;
2001 Acts, ch 8, §1; 2001 Acts, ch 20, §2, 3; 2001 Acts, ch 64, §4;
2002 Acts, ch 1050, §18; 2003 Acts, ch 166, §2; 2006 Acts, ch 1069,
§1; 2008 Acts, ch 1187, §112; 2009 Acts, ch 133, §36
Referred to in § 135B.34, 135C.36, 152.5, 231B.2, 231C.3, 231D.14,
235A.16, 235B.6, 237A.5
Legislative intent; 98 Acts, ch 1217, §36