Under
Nevada Revised Statutes (NRS) 449.176 through
NRS 449.188,
people who have been convicted of certain crimes
may not work at certain long term care
facilities or agencies. The discussion here
concerns the requirements of NRS 449.176 through
NRS 449.188 only, and is intended as a guide
only. The complete statute is available at
http://leg.state.nv.us/NRS/NRS-449.html
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Questions? Contact:
Bureau of Health Care Quality and Compliance –
April Fisher at (775) 684-1031 or
aknight@health.nv.gov
Under NRS 449, you must conduct a
fingerprint-based criminal history background
check on each employee and each independent
contractor if you are the administrator of, or
you are licensed to operate, any of the
following:
- Agency to provide personal care services
in the home
- Agency to provide nursing in the home
- Facility for intermediate care
- Facility for skilled nursing
- Residential facility for groups
- Homes for individual residential care
These background checks
must be conducted through the Central Repository
for Nevada Records of Criminal History, an
agency of the Nevada Department of Public
Safety, Records and Technology Division. Even if
you use another agency to conduct a preliminary
criminal history check, you must conduct a
background check by submitting fingerprints to
the Central Repository, as required by the
statute and summarized here. If your business is
not one of the five types of entities listed
above then you may choose to voluntarily submit
fingerprints under
NRS 179A.210
to obtain criminal history information with each
employee's consent, but you are not authorized
to have the Department of Public Safety evaluate
an individual's criminal history under NRS 449.
NRS 449.179 applies to every employee or
independent contractor, including the
administrator and the person licensed to operate
the agency or facility, regardless of whether
the individual provides direct patient care. You
must conduct the background check in addition
to any other fingerprint-based criminal
history background check that the individual may
have already undergone, such as to obtain a
professional license, including a nursing
license or a long term care administrator
license. (See
Special Notices
below.) The statute does not apply to a
volunteer. The statute does not apply to an
individual that is not hired by you or your
licensed entity but rather is hired directly by
a resident at your licensed entity.
Overview of the Process under NRS 449
If you learn from a
background check or receive evidence from any
other source that an employee or independent
contractor has been convicted of a crime listed
in NRS 449.188, then you must terminate that
individual's employment after allowing him time
to correct the information, as described in NRS
449.185 and summarized below.
Under NRS 449.179, when
you accept an individual for employment, you
must complete the following steps within ten
days of hiring that individual as an employee or
an independent contractor:
- Obtain a written statement from the
individual stating whether the individual
has been convicted of any crime listed in
NRS 449.188,
- Obtain oral and written confirmation of
the information in that statement,
- Obtain the individual's fingerprints and
written authority from the individual the
you may submit those fingerprints to the
Central Repository for Nevada Records of
Criminal History, and
- Submit those fingerprints to the Central
Repository of Nevada Records of Criminal
History.
You must ensure that
the criminal history of each employee or
independent contractor who works for you is
investigated at least once every five years by
submitting fingerprints to the Central
Repository.
You may avoid the
initial criminal history background check when
you hire the individual if the individual can
provide you with proof that an investigation of
his criminal history was conducted by the
Central Repository within the immediately
preceding six months and the investigation did
not indicate that the individual had been
convicted of any crime listed under NRS 449.188.
That proof would consist of a copy of the
Applicant Fingerprint Response that the
Department of Public Safety Criminal History
Records Repository provided to another employer
indicating that the individual's status was
449.188 NEGATIVE. If you forego the initial
criminal history background check on this basis,
then you must keep a copy of the Applicant
Fingerprint Response on which you relied in
your files.
You may download a
sample of the type of criminal history statement
and authorization called for in NRS 449.179 here
in
Microsoft Word
or
Adobe PDF format. You
may use this sample statement, or you may choose
to incorporate into your own application for
employment language that otherwise meets the
requirements of NRS 449.179. You must keep a
copy of each individual's signed criminal
history statement in your files.
You must submit the
fingerprints of each employee and independent
contractor to the
Central Repository
which is in the Department
of Public Safety (DPS) Records and Technology
Division. You must establish an account with DPS
to submit fingerprints for any purpose. DPS uses
this information to determine what kind of
background check to conduct and where to send
the results. This account establishes your
authority to receive criminal history
information, and provides information that you
will need for your fingerprint records. Each
employee fingerprint record must have in the
"Reason Fingerprinted" field "NRS 449.176" (not
NRS 449.179) and in the "MNU Miscellaneous
Number" field your DPS account number. You must
pay for the background check, but you may
recover up to half of the cost from the
individual. See
NRS 449.179(5)
for details and limitations.
If you use printed
fingerprint cards, then you must submit to DPS
two cards for each employee: one for the state
check and one for the FBI check. You must keep a
copy of each card in your files. A photocopy of
each card is sufficient. If you use a
fingerprint agency that can submit fingerprint
records electronically, then you need to keep in
your files only one copy of the fingerprints
submitted along with the receipt indicating that
the prints were submitted electronically. We
strongly encourage you to submit fingerprints
electronically because:
- There is a lower probability that the
fingerprints will be rejected for poor
quality.
- You are likely to receive a faster
response on the background check.
- As of October 1, 2007, the cost of the
FBI check is lower for fingerprints
submitted electronically.
Either way, DPS keeps
one copy of the fingerprints to conduct the
check of state criminal history records and
forwards a copy to the FBI to check for criminal
convictions in other states.
After DPS completes its
background check, it sends to you an "Applicant
Fingerprint Response" indicating the status of
the individual. You must keep a copy of the
Applicant Fingerprint Response from DPS in your
files, along with the criminal history statement
signed by the individual and a copy of the
individual's fingerprints. Based on the status
indicated in the Applicant Fingerprint Response,
there is specific action you must take, as
listed below:
|
Status |
Action you must take |
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449.188 POSITIVE |
You may
not employ the individual, and
you must
terminate the individual's employment
immediately*. The individual has a
Nevada State or FBI criminal history
record that lists at least one
disqualifying conviction listed in NRS
449.188.
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449.188 FBI POSITIVE
or
449.188 POS FBI |
You may not employ the
individual, and you must
terminate the individual's employment
immediately*. The individual has an FBI
criminal history record that lists at
least one disqualifying conviction
listed in NRS 449.188. |
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449.188 STATE POSITIVE |
You may
not employ the individual, and
you must
terminate the individual's employment
immediately*. The individual has a
Nevada State criminal history record
that lists at least one disqualifying
conviction listed in NRS 449.188.
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449.188 NEGATIVE |
You may employ
the individual. The individual has no
convictions in Nevada State or FBI
criminal history records which would
disqualify the individual under NRS
449.188.
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|
STATE NEGATIVE |
The
individual's Nevada State criminal
history has no disqualifying convictions
listed in NRS 449.188. The background
check is not complete until you have an
answer regarding the individual's FBI
status, but you may continue to employ
the individual until you receive that
FBI response.
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|
FBI NEGATIVE |
The
individual's FBI criminal history has no
disqualifying convictions listed in NRS
449.188. The background check is not
complete until you have an answer
regarding the individual's state of
Nevada status, but you may continue to
employ the individual until you receive
that state response.
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|
449.188 UNDECIDED |
The individual
has been arrested for an offense which
would disqualify the individual under
NRS 449.188 if the individual is
convicted when the case is adjudicated.
You may employ the individual, if you
choose to do so, but we strongly
encourage you to determine the status of
the pending case. DPS will
not notify you of the disposition
of the case when it is finally
adjudicated; but you are required to
terminate the individual if you learn
from any source that the
individual is convicted of a
disqualifying offense.
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|
STATE REJECT 1 |
The
individual's fingerprints were not
readable, and you must take and submit a
new set of fingerprints for the
background check if you still employ the
individual. If you re-submit the
fingerprints within 90 days, then you
will not be charged by DPS for this
second submission. You can improve the
quality of fingerprints by using an
agency with livescan fingerprint
equipment, which uses laser scanning
technology instead of ink to raise
fingerprints. The
list of livescan fingerprint sites
on the HCQC website includes agencies
that are equipped with livescan
equipment for fingerprinting.
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|
STATE REJECT 2 |
If the
individual's fingerprints are rejected a
second time, and you have tried livescan
equipment to raise suitable prints, then
you may ask DPS to conduct a name check
only by providing DPS with appropriate
identifying information about the
individual. Be sure to keep copies of
the reject print notices in your files,
along with the results of the name
check.
|
|
FEDERAL REJECT 1 |
A new set of
fingerprints (two fingerprint cards, FD
258), with the original fingerprint
cards and all attachments must be
returned in order to receive credit and
avoid additional processing fees.
Fingerprint cards must be resubmitted in
a reasonable time period not to exceed
twelve months of the first fingerprint
submission.
Rejects cannot be resubmitted
electronically. Rejects must be mailed
to:
Criminal
History Records Repository
333 West Nye Lane, Suite 100
Carson City, NV 89706
Failure to
comply will necessitate an additional
processing fee.
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FEDERAL REJECT 2 |
When a
fingerprint submission has images that
are too poor to classify, you will
receive a reject letter. You can receive
a reject letter from the state, the FBI,
or both. When this happens, you must
reprint the applicant and mail the cards
in MANUALLY with ALL of
the reject paperwork stapled to
the new fingerprint cards. It is
imperative that the paperwork accompany
the new fingerprints, otherwise they
will appear to be brand new submissions.
If they look brand new, not only will
your agency be charged again, you will
not get the original submission
processed properly and may have to start
all over again.
Once the
2nd set of fingerprints is received with
the rejection paperwork, we will process
the 2nd submission. You will receive
either a valid response or another
reject letter. After 2 reject letters
are received for the same submission
type, either state or FBI, you may
request a name check. You would send the
reject paperwork along with a letter on
your agency letterhead requesting a name
check for your applicant.
The most
common mistake on this is to assume you
can have a name check after receiving a
state and an FBI rejection. This is
NOT CORRECT! You must have 2
rejects from EITHER the state or the
FBI in order to receive a name check—2
rejects from the state = State name
check; 2 rejects from the FBI = FBI name
check.
If you are
not sure if your applicant needs a 2nd
submission or a name check, please
call our office first! We will be
happy to look up the information, see
where your applicant is in the process
and let you know how to proceed. Trust
me; it is a lot better for you and for
us if you call us rather than guessing.
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* If the individual
believes that the information provided by the
Central Repository is incorrect and immediately
notifies you, then NRS 449.185 requires that you
give the individual a reasonable amount of time
of not less than 30 days to correct that
information with the Central Repository before
you terminate the individual on the basis of
being disqualified under NRS 449.188. See
instructions below for how an individual may
challenge a disqualification with the Central
Repository.
Disqualifying Criminal Convictions
If you learn from the Department of Public
Safety or any other source that an
individual has been convicted of a crime listed
in NRS 449.188, then you may not employ that
individual.
NRS 449.188
lists disqualifying criminal convictions, which
are summarized below. The statute does not
distinguish between misdemeanor and felony
convictions, so any conviction for any offense
listed in NRS 449.188 prevents you from
employing that individual.
Unlimited convictions
You may not employ any
individual who has ever
been convicted of any of the following:
- Murder, voluntary manslaughter or mayhem.
- Assault with intent to kill or to commit
sexual assault or mayhem.
- Sexual assault, statutory sexual
seduction, incest, lewdness, indecent
exposure or any other sexually related
crime.
- Abuse or neglect of a child or
contributory delinquency.
- Abuse, neglect exploitation or isolation
of any older persons or vulnerable persons,
including, a violation of any provision of
NRS 200.50955 or 200.5099,
inclusive, or a law of any other
jurisdiction that prohibits the same or
similar conduct.
- A violation of any provision of
NRS 422.450 to 422.590,
inclusive, relating to Nevada's State Plan
for Medicaid.
Seven-year convictions
You may not employ any individual who has been
convicted within the past seven years
of any of the following:
- Any violation of any federal or state
law regulating the possession, distribution
or use of any controlled substance or any
dangerous drug as defined in
Chapter 454
of NRS, within the immediately preceding 7
years.
- Misdemeanor
Prostitution, solicitation, lewdness or
indecent exposure, or any other sexually
related crime that is punished as a
misdemeanor, within the immediately
preceding 7 years.
- A crime involving
domestic violence that is punished as a
felony.
- A crime involving
domestic violence hat is punished as a
misdemeanor, within the immediately
preceding 7 years.
- A violation of any
provision of law relating to the State Plan
for Medicaid or a law of any other
jurisdiction that prohibits the same or
similar conduct.
- A criminal offense under the laws
governing Medicaid or Medicare.
- Any offense involving fraud, theft,
embezzlement, burglary, robbery, fraudulent
conversion or misappropriation of property.
- Any other felony involving the use or
threatened use of force or violence against
the victim or the use of a firearm or other
deadly weapon.
- An attempt or conspiracy to commit any
of the offenses listed in this paragraph,
within the immediately preceding 7 years.
Even if an individual has a professional
license, you may not employ that individual with
any of the disqualifying convictions listed in
NRS 449.188. You may have your own policies that
influence your hiring decisions, which may
include other criteria not listed above, but
you may not employ an individual with any of
the disqualifying convictions in NRS
449.188. If you continue to employ an individual
after learning of any disqualifying convictions,
from DPS or any other source, then
the Nevada State Health Division Bureau of
Health Care Quality and Compliance (HCQC) may
impose administrative sanctions against your
facility's license to operate including denying
you a license or suspending or revoking your
license.
DPS notifies the Bureau of Health Care Quality
and Compliance (HCQC) of the outcomes of all
background checks conducted under NRS 449. When
HCQC learns of a disqualification, namely any
POSITIVE result on the "Applicant Fingerprint
Response", we send a notice to the administrator
of the entity that conducted the background
check to verify compliance with NRS 449. If you
receive such a notice, follow the instructions
in that notice to indicate the current
employment status of the disqualified individual
and promptly return the notice to HCQC to ensure
that your license to operate is not affected by
continuing to employ an individual disqualified
under NRS 449.188.
How to challenge a disqualification
Only the individual who is disqualified may
challenge the disqualification, and that
challenge must be filed with the Central
Repository in the Records and Technology
Division of the Department of Public Safety
(DPS). The Bureau of Health Care Quality and
Compliance (HCQC) enforces whatever decision
that DPS makes. HCQC does not see the criminal
history information and is not authorized to
grant waivers. The appropriate form for filing a
challenge to a criminal history background check
disqualification is available on the website for
the
Department of Public Safety Records and
Technology Division.
Submit all correspondence and other paperwork
relating to a challenge to the Department of
Public Safety, not to the Bureau of Health Care
Quality and Compliance.
The only basis to challenge a disqualification
is that the information that DPS used was
incorrect. An individual may not
challenge a disqualification based on completing
a sentence of incarceration or probation, making
restitution, or other factors that may
demonstrate good character. Remember that DPS
compares the fingerprints that you submit with
the fingerprints in the criminal history record
to confirm that the criminal history belongs to
the disqualified individual. If the criminal
history record is incorrect, incomplete, or
otherwise contains inaccurate information, then
the individual may challenge the
disqualification by providing the correct
information to the Department of Public Safety.
A disqualified individual
must notify you immediately of any intention to
file a challenge; and if you are notified, then
you may not terminate the individual on the
basis of the disqualification for at least 30
days while that challenge is reviewed by DPS.
If you receive a letter from DPS
Records and Technology Division that the "Nevada
Criminal History Records Repository has received
a Request Copy of Criminal Record for
Challenge" from the named individual, then
you will know that the individual has filed a
challenge, and what instructions DPS has
provided to the individual to support his
challenge. This letter means that DPS has not
received new information and has not reversed
its decision to disqualify the individual. HCQC
also receives copies of these letters from DPS,
and we will wait at least 30 days before
contacting you again to determine the
individual's employment status. If DPS does not
reverse its prior decision to disqualify the
individual, then you will receive no further
notice from DPS.
If you receive a "Notice of
Reversal" from DPS Records and Technology
Division, then you will know that DPS has
received new information and that they have
reversed their prior decision to disqualify the
individual. If you receive a "Notice of
Reversal," then you may continue to employ that
person. You must keep a copy of that notice in
your files, along with the copy of the
individual's signed criminal history statement
and fingerprints. HCQC also receives copies of
these notices, so it is not necessary for you to
advise HCQC of this action unless requested to
do so by HCQC.
We strongly
encourage you to investigate with the individual
whether there is a basis to challenge the
disqualification if the individual advises you
that he will challenge the disqualification.
Remember that DPS compared the fingerprints of
the individual that you submitted with the
fingerprints in the criminal history record that
disqualified him before issuing you the notice
of disqualification.
In any case, only DPS may
reverse the disqualification, and when they
receive appropriate documentation they usually
can respond within a few days. Neither you nor
we at HCQC are authorized to reverse a
disqualification decision made by DPS,
regardless of the information presented to us.
Bear in mind that only DPS sees the criminal
history details, so neither you nor we at HCQC
know which or how many criminal convictions may
have resulted in the disqualification.
Disqualified individuals may
seek to have their criminal history conviction
information sealed and their civil rights
restored by applying with the court in the
jurisdiction of the conviction. Until that court
grants the sealing of the record, however, you
may not employ the disqualified individual.
Information about sealing criminal history
records is available on the website for the
Department of Public Safety Records and
Technology Division.
Special Notices
If you represent an Agency to Provide
Personal Care Services in the Home, you must
conduct fingerprint-based criminal history
background checks on each of your employees and
independent contractors, before we can issue you
an initial license. When you apply for a
license, HCQC will inspect your records to
ensure, among other things, that you are in
compliance with the background check
requirements of NRS 449. If you are not in
statutory compliance, HCQC will not issue your
license.
If you are a landlord of
dwelling units intended and operated exclusively
for persons 55 years of age and older then
under
NRS 118A.335, you may
not employ any person who will work 36 hours or
more per week and who will have access to all
dwelling units to perform work on the premises
unless the person has obtained a work card
issued pursuant to NRS 118A.335 subsection 2 by
the sheriff of the county in which the dwelling
units are located and unless you have renewed
that work card as necessary. Effective July 1,
2007, your sheriff is prohibited from issuing a
work card if an employee has any conviction
listed in NRS 118A.335(4), and that list is
different from NRS 449.188. Please consult your
local sheriff to determine what procedure you
must follow to comply with this new statutory
requirement. |
