Questions? Contact: Bureau of Health Care Quality and Compliance 775-687-4475
April Fisher ext. 256, 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

Overview of the Process under NRS 449

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:

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.
• 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 of a firearm or other deadly weapon.

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.

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.

You are in statutory violation if you failed to follow the procedures of NRS 449.179 through 449.188 after October 1, 2005, when the current law took effect. If you have been submitting fingerprints under NRS 179A.210, you must re-submit all employee fingerprints under NRS 449.176; but before you can do so, you must change your account at the Department of Public Safety to indicate that you are required to submit fingerprints under NRS 449.176 (this code applies to both NRS 449.176 and NRS 449.179 applicants for fingerprint cards). You may change your account by submitting a letter to DPS on your own letterhead, or you may download and complete this form, sign and submit to DPS.

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.