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Unit 4: Criminal Background Checks


 

Criminal Background Checks

 

NEW PRICE- $27.50 effective June 3, 2013

 

The Department of Aging transitioned from a manual to an electronic fingerprinting process for Federal Bureau of Investigations (FBI) criminal history background checks required by the Older Adults Protective Services Act. Due to this conversion from a manual fingerprinting process to an electronic fingerprinting process, fingerprints submitted on fingerprint cards will no longer be accepted.

 

All requests for FBI background checks must be made directly through Cogent Systems, a 3rd party electronic background check processor contracted by the Department of Aging. This change will expedite the submission and processing or FBI background check requests.

 

The fingerprinting registration process is conducted through Cogent at www.pa.gogentid.com. Effective June 3, 2013, the fee for the background check is $27.50.

 

 

The FBI background checks can be done in three easy steps:

 

  1. Register on-line at www.pa.cogentid.com
  2. Take registration number to the most convenient Cogent fingerprinting site to have fingerprints taken electronically.  Fingerprints will be sent electronically to the Federal Bureau of Investigation (FBI).
  3. The Department of Aging will review and analyze the results of the background check then send the required employment determination to the applicant and the facility.

 

 

For further information on:

            Cogent Process (Click Here)

            Facility Types (Click Here)

Prohibitive Offenses (Click Here)

Provider Check List (Click Here)

 

 

CONTENTS:

 

Unit Introduction and Learning Objectives

Study Steps

Narrative

Procedures to Obtain Criminal Background Checks

PSP Criminal Background Check Process

FBI Criminal History Background Check Process

Prohibitive Offense Convictions

Provisional Employment

Nixon Decision

Enforcement

Immunity

Self Check Quiz

Provider Checklist

 


UNIT INTRODUCTION AND LEARNING OBJECTIVES

 

The Act 169-1996 Amendment to OAPSA requires a criminal background check for all employees and administrators of a facility.  Facilities, as defined by the act, include: Domiciliary Care Homes, Home Health Care Agencies, Long Term Care Nursing Facilities (licensed by Dept. of Health), Adult Daily Living Centers (licensed by Dept. of Aging), and Personal Care Homes (licensed by Dept. of Public Welfare).  In addition, the Pennsylvania Department of Health has defined home health care organization or agency to include: hospices and birth centers, and the Pennsylvania Department of Public Welfare (DPW) has concluded that the Act is applicable to all DPW-licensed and DPW-operated residential facilities for adults; specifically:  Personal Care Homes, 55 Pa. Code Ch. 2620; Community Residential Rehabilitation Services, 55 Pa. Code Ch. 5310; Long Term Structured Residences, 55 Pa. Code Ch. 5320; Community Homes for Individuals with Mental Retardation, 55 Pa. Code Ch. 6400; Family Living Homes, 55 Pa. Code Ch. 6500; ICF-MR’s (private and state), 55 Pa. Code Ch. 6600; State Mental Hospitals; and Nursing Facilities.  A Home Health Care Agency is further defined to include those agencies licensed by the Department of Health and any public or private organization which provides care to a care-dependent individual in their place of residence. Individuals with convictions for prohibitive offenses are prohibited from employment in these facilities.

 

An employee is defined as any applicant or new employee hired after July 1, 1998. Individuals employed by the facility prior to July 1, 1998, are not required to undergo the background check.

 

The definition of employee includes contract employees who have direct contact with residents or unsupervised access to their personal living quarters. It also includes persons employed or contracted by a public or private organization to provide care to a care dependent person in his/her own residence.


STUDY STEPS

 

Read the narrative section and review forms.

Take the Self-Check Quiz.

Check your answers to the Quiz at the end of the unit.

 


 

NARRATIVE

 

 

Inquiries on criminal history procedures, state and /or federal, may be directed to the Department of Aging, Criminal History Background Check unit at: 717-265-7887.

 

The next section describes specific procedures that an applicant or a current facility employee must follow to meet the requirement for employment in a facility.

 


PROCEDURES TO OBTAIN CRIMINAL BACKGROUND CHECK

 

 

Facility Applicant/Employee (35 P.S. § 10225.502 and § 10225.503)

 

Effective July 1, 1998, a facility employment applicant, and a facility employee since July 1, 1998, must be free from certain criminal convictions. Thus, on and after July 1, 1998, facility employment applicants and facility employees employed on and after July 1, 1998 must satisfy conditions of the Act for employment.

 

The criminal background check requirement is that all facility applicants must submit with their employment application a criminal history report from the Pennsylvania State Police (35 P.S. § 10225.502(a)(1); see 18 Pa. C.S.A. § 9109). If the applicant is not a resident of Pennsylvania, or has not been a resident of Pennsylvania for the entire two years immediately preceding employment application, then in addition to the report from the PA State Police, a report of Federal criminal history record information must be obtained from the Federal Bureau of Investigation through the PA Department of Aging which has been designated by statute as the intermediary (35 P.S. § 10225.502(a)(2); see 28 U.S.C.A. § 534(a)(1)). A facility employee who has continuously been employed at the same facility before and since July 1, 1998 shall not be required to obtain the criminal background check as a condition of continued employment in that facility (35 P.S. § 10225.508(1)).

 

Below you will find directions for Pennsylvania State Police (PSP) & Federal Bureau of Investigation (FBI) criminal history background checks.


 

Pennsylvania State Police (PSP)

 

All applicants/employees must obtain a clearance from the Pennsylvania State Police which the applicant/employee must submit with their application for employment.

 

This clearance can be obtained by using the Pennsylvania Access to Criminal History (P.A.T.C.H.) at https://epatch.state.pa.us.  If you have questions regarding this process please call 1-888-QUERY PA or 1-888-783-7972

 

You can also obtain a report from the Pennsylvania State Police by completing the Criminal Record Check Form (SP4-164).  Complete Part I of the Form. Follow the instructions printed in each section for proper completion of the form. Failure to follow the instructions will result in a considerable delay in the processing of your request. A processing fee of $10.00 is required. Enclose a money order, cashier’s check or certified check made payable to the "Commonwealth of PA". No cash, personal or business checks will be accepted. Mail the completed application and fee to the address below:

 

PA State Police Central Repository-164

1800 Elmerton Avenue

Harrisburg, PA 17110-9758

 

If there is no criminal history or record, the PSP will forward a letter stating same.  If there is a criminal record, the PSP will forward a copy of the rap sheet to the applicant.

 

The act does allow for a 30-calendar-day provisional hire for those individuals who need only a Pennsylvania State Police Background Check. In order for the provisional hire to be allowed the following items must occur:

 

Ø  The applicants must provide proof they have applied for the background check.

Ø  Applicants swear or affirm in writing that they have not been convicted of one of the offenses contained in the act.

Ø  Administrator has no knowledge of information pertaining to the applicant which would disqualify the applicant from employment pursuant to the act.

Ø  When the State Police Criminal History Background Report is received and the provisionally hired applicant has been found to have a conviction for one of the prohibitive offenses, the applicant will be immediately dismissed by the administrator.

 

The Department has enclosed two informational tools to facilitate the interpretation of the State Police Criminal History Background Reports. The first tool developed by the Department of Aging contains a list of all the prohibitive offenses, corresponding offense code and type of conviction necessary to preclude employment. 

 

Federal Bureau of Investigation (FBI)

When the applicant/employee has not been a resident of the Commonwealth of Pennsylvania for the entire two years (without interruption) immediately preceding the date of application for employment or currently lives out-of-state, in addition to the Pennsylvania State Police Criminal History Background Check, the applicant/employee will also need to obtain an FBI Criminal History Background Check.

 

NEW PRICE - $27.50 effective June 3, 2013

 

The Department of Aging began using an electronic fingerprinting process. Due to this new conversion from a manual fingerprinting process to an electronic fingerprinting process fingerprints submitted on fingeprint cards will no longer be accepted.

 

 

All requests for FBI criminal history background checks must be made directly through Cogent Systems, a third party electronic background check processor contracted by the Department of Aging.  This change will expedite the submission and processing of FBI criminal history background check requests.

 

Background:   

As required by the Older Adults Protective Services Act (OAPSA), applicants/employees of specific facilities or agencies who have NOT been a resident of the Commonwealth of Pennsylvania for the last two years must obtain criminal history record information reports from both the Pennsylvania State Police (PSP) and the Federal Bureau of Investigation (FBI).   The employment determinations for applicants/employees who require an FBI criminal history background check must come from the PA Department of Aging.

 

The Process:

(1) Applicant Registration:  Applicants will now register online at www.pa.cogentid.com or by telephone at 1-888-439-2486, Monday through Friday, 8 A.M. to 6 P.M. EST.  Following registration, the applicant will be provided with a registration number that they will take with them when they go to the Cogent site for fingerprinting.  Applicants must be registered with Cogent Systems prior to arriving at a fingerprinting site.

 

When registering on-line, please select the Pennsylvania Department of Aging icon.   Fingerprinting requests processed through any other agency cannot be accepted.  If an applicant mistakenly registers through a different department, the registration must be cancelled.  The applicant must restart the registration process using the Aging icon.  This must be completed prior to being fingerprinted.  Once fingerprinted, registration and/or results cannot be transferred to another state agency.

 

Note to facilities and/or agencies: If your agency chooses to be billed for fingerprinting, Cogent Systems allows the fee to be billed to the facilities/agencies address.  In order to use this course of action, the facility/agency must complete and submit the Cogent Systems’ Agency Billing Agreement.  The agreement is available on the Cogent website at www.pa.cogentid.com.  The billing account must be established prior to sending applicants to the fingerprint site.

 

(2) FEES: The fee for an FBI background check is $27.50.   Payment can be made during on-line registration by using a credit or debit card or in-person at the fingerprinting site with a money order or cashier’s check made payable to Cogent Systems.  No cash transactions or personal checks will be accepted.

 

(3) FINGERPRINT SITES: Since April 2007, Cogent Systems has established more than 110 sites across the Commonwealth.  We encourage all facilities to direct perspective applicants to the most convenient fingerprint service site.

 

(4) Processing FBI Reports: Cogent Systems will forward the applicant’s fingerprints electronically to the FBI.  Responses from the FBI will be sent to the PA Department of Aging for analysis.  The Department of Aging will review the results to determine if any convictions listed in OAPSA would prohibit the applicant/employee from being employed.  The Department of Aging will send employment determination letters to both the facility and applicant. Employment determinations from any other source are not acceptable under the law. 

 

Security of Applicant Information:  Data collected during the fingerprinting process is secured and regulated by both Cogent Systems and the regulations governing the use of that data.  The computer system is housed within a secured network that is protected by firewall devices configured to allow only permissible protocols and traffic.  Cogent Systems will ensure that all devices procured under this process continue to adhere to the Commonwealth’s Security requirements.

 

Inquiries or Questions: Individuals who are seeking additional information regarding the process and print locations may contact Cogent Systems at: www.pa.cogentid.com.

 

If you have any questions, please contact the PA Department of Aging, Criminal History Background Check Unit at (717) 265-7887, Monday through Friday.

 

 

The act does allow for a 90-calendar-day provisional hire for those individuals who need a Pennsylvania State Police Criminal History Background Check and the FBI Criminal History Background Check. In order for the provisional hire to be allowed the following items must occur:

 

Ø  The applicants must provide proof they have applied for the criminal history background check.

Ø  Applicants swear or affirm in writing that they have not been convicted of one of the offenses contained in the act.

Ø  Administrator has no knowledge of information pertaining to the applicant which would disqualify the applicant from employment pursuant to the act.

Ø  When the PA Department of Aging’s response to the FBI Criminal History Background Check is received for the provisionally hired employee and the provisional employee has been found to have a conviction for one of the prohibitive offenses, the applicant will be immediately dismissed by the administrator.

 

 

If you have additional questions, please contact the PA Department of Aging, Criminal History Background Check Unit at (717) 265-7887, Monday through Friday.

 

 

 

 


PROHIBITIVE OFFENSE CONVICTIONS

 

 

If certain convictions of statutory infractions are evidenced in the report(s), then employment in a facility is forbidden (35 P.S. § 10225.503(a)(1)&(2)). That is, where an applicant or employee has a record of certain law convictions, then such individual is prohibited from employment, and shall not be employed, in a facility (cf 18 Pa.. C.S.A. § 6105, 23 Pa. C.S.A. § 6344, 23 Pa.. C.S.A. § 6355 and 42 Pa. C.S.A. § 6308).

 

Employment is prohibited where the criminal history reveals a conviction of the Crimes Code (18 Pa. C.S.A. § 101 as indicated by OAPSA prohibitive offenses (click here) and a felony conviction of The Controlled Substance, Drug, Device and Cosmetic Act (35 P.S. § 780-101.

 

 

 

PROVISIONAL EMPLOYMENT (35 P.S. § 10225.506)

 

Facilities may employ applicants on a provisional basis for a single period not to exceed 30 days who have been a resident of Pennsylvania for two years immediately preceding the date of the application for employment; and, a period of 90 days for applicants who have not been a resident of Pennsylvania for two years immediately preceding the date of the application for employment, if all of the following conditions are met:

 

The applicant has applied for the information required under the Act and the applicant provides a copy of the appropriate completed request forms to the administrator.

 

The facility has no knowledge of information pertaining to the applicant which would disqualify applicant from employment pursuant to the Act, subject to 18 Pa. C.S. § 4911 (relating to tampering with public records or information).

The applicant swears or affirms in writing that applicant is not disqualified from employment under the Act.

 

 

Nixon Decision

 

Older Adults Protective Services Act – Criminal Background Check Provisions

 Nixon v. Commonwealth of PA, et al, 2003 LEXIS 2604 (12/30/2003)

 

            The Supreme Court of Pennsylvania issued the above-referenced decision on December 30, 2003, which, in effect, held the criminal history background check prohibitive hire provisions of the Older Adults Protective Services Act (OAPSA) to be unconstitutional “as applied to the individual plaintiffs.”  The Court only granted specific relief to the individual plaintiffs and not to all persons affected by the criminal history background check provisions in OAPSA.

 

            The Pennsylvania Department of Aging (PDA) anticipates legislative action in the near future.  In the interim, the protective services program in PDA will operate as follows for all facilities required to comply with OAPSA:

 

  1. Criminal history reports are still required for all applicants.
  2. The PA State Police will continue to process applications for state criminal history reports and provide such information to the entity requesting the criminal history report.
  3. PDA will continue to process FBI criminal history reports.
  4. Letters from PDA will continue to indicate “clear” or “prohibited”, based on FBI criminal history background check information.
  5. Effective February 4, 2004, facilities will not be sanctioned for hiring or continuing to employ individuals who demonstrate rehabilitation by evidence of a minimum five-year aggregate work history in care-dependent services, without incident, from either the date of conviction or release from incarceration, whichever is later.  Applicants are responsible for providing official verification of such dates.  Care-dependent services include healthcare, eldercare, childcare, mental health, mental retardation, or care of the disabled.  Facilities must reasonably investigate the character of an individual with a previously disqualifying criminal offense by means of interviews, references and evidence of work history.  Facilities that hire such an individual are required to obtain specific employer-provided documentation of that individual’s employment in care-dependent services and retain it in the individual’s personnel file.
  6. The Court’s ruling in no way prohibits a facility from refusing to employ an individual, even one who has a clean aggregate five-year work history, based on information obtained in a criminal history report.  Pennsylvania law, 18 Pa.C.S. § 9125, provides that an employer may consider criminal history felonies and misdemeanors, to the extent they relate to the applicant’s suitability for employment in the position sought.  The employer is required to notify the applicant, in writing, if the decision not to hire the applicant is based, in whole or in part, on the applicant’s criminal history. 

 

 

 

There are specific concerns surrounding the interim Nixon policy, which allows a facility to hire an individual designated as a prohibitive hire under OAPSA.  The policy, which was developed by the Chief Counsels of the Departments of Aging, Health and Welfare and the Office of General Counsel, requires that an applicant to be hired under the interim Nixon policy must possess five years of care‑dependent services, which the facility must reasonably investigate by means of interviews, references and evidence of work history.

 

Specifically what steps must be completed and documentation possessed to hire an individual under the interim Nixon policy.

 

PDA suggested that the following requirements be met if opting to utilize the interim Nixon policy:

 

1.    Obtain information from the applicant regarding the prohibitive offense(s).

2.    Review the prohibitive offense(s) and determine the date(s) of conviction or release(s) from incarceration.

3.    If said offense(s) occurred more than five years ago, the administrator shall ask applicant to provide evidence of a minimum five‑year aggregate work history in care‑dependent services, without incident, from either the date(s) of conviction or release(s) from incarceration, whichever is later.

4.    Administrator shall require applicant to provide documentation (i.e., pay stubs, W‑2s, etc.) confirming said work experience.

5.    Administrator shall investigate the five years of work experience by contacting any/all employers.

6.    Administrator shall require employer(s) to provide confirmation and written documentation of applicant’s employment and conduct a character reference check.

7.    Administrator may wish to conduct personal reference checks or any other available employment, community, etc. check.

8.    All documentation shall be kept confidential and filed in the individual’s personnel file.

 

 

  

 

ENFORCEMENT (35 P.S. § 10225.505 and § 10225.706) 

 

There are administrative and criminal penalties for intentional or willful failure to comply with the provisions of the Act. Any administrative enforcement of the reporting or criminal history provisions shall be conducted by the Commonwealth agency or agencies which license or have oversight authority for the facility. Any criminal enforcement of the reporting or criminal history provisions shall be prosecuted by the County District Attorney or Commonwealth Attorney General [see 71 P.S. § 732-205(a)(6); see also 71 P.S. § 732-205(b)).]

 

Administrative penalties may include a civil penalty of $2,500. Intentional or willful failure to comply or obstruction of compliance with the Act could result in criminal conviction as a misdemeanor of the third degree and a fine of $2,500 and imprisonment for one year. There are also penalties for failure to report a case of suspected abuse under the Act. Summary offense for the first violation, and a misdemeanor of the third degree for the second or subsequent violation.

 

IMMUNITY

(35 P.S. § 10225.302(d), § 10225.305, § 10225.503(c) and § 10225.707)

 

No person nor entity shall be held liable for any action directly related to good faith compliance with the Act.

 

Click here to view the

Unit 4 Self Check Quiz

  

 

 

PROVIDER CHECKLIST

 

Providers must:

  • Ensure the criminal history background checks are submitted at the time of application. 
  • Ensure all employees submit to a Pennsylvania State Police (PSP) criminal history background check.
  • Ensure employees who have not been a PA resident for the past two (2) consecutive years and all non-residents submit a FBI check and employment determination processed by the Department of Aging.  (FBI criminal history background checks processed by other agencies are not acceptable.)
  • Provisional Employment
    • 30 days – PSP criminal history background check
    • 90 days – FBI criminal history background check
  • Prohibitive Offenses - Criminal Homicide - includes Murder, Voluntary & Involuntary Manslaughter, Causing or Aiding Suicide, Drug Delivery Resulting in Death, Aggravated Assault, Kidnapping, Unlawful Restraint, Rape, Statutory Sexual Assault, Involuntary Deviate Sexual Intercourse, Sexual Assault, Aggravated Indecent Assault, Indecent Assault, Indecent Exposure, Arson and Related Offenses, Burglary, Robbery, CC 3900 Theft Series (Felony or 2 Misdemeanors), Forgery, Securing Execution of Documents by Deception, Incest, Concealing the Death of a Child, Endangering Welfare of Children, Dealing in Infant Children, Intimidation of Witness or Victims, Retaliation Against a Witness or Victim, Prostitution (Felony Offense), Obscene or Other Sexual Materials, Corruption of Minors, Sexual Abuse of Children and any Felony Drug Offense.

 

If you have any questions regarding criminal history background checks or mandatory abuse reporting please call 717-265-7887.