Rule 15-16-1-4.10.6 - Criminal History Record Checks1. Definitions. a. Affidavit. For the purpose of fingerprinting and criminal background history checks, the term "affidavit" means the use of Mississippi State Department of Health (MSDH) Form #210, or a copy thereof, which shall be placed in the individual's personal file. b. Employee. For the purpose of fingerprinting and criminal background history checks, employee shall mean any individual employed by a covered entity. The term "employee" also includes any individual who by contract with the covered entity provides direct client care in a client's room or in treatment rooms. c. The term employee does not include healthcare professional/technical students, as defined in Section 37-29-232, performing clinical training in a licensed entity under contracts between their schools and the licensed entity, and does not include students at high schools who observe the treatment and care of clients in a licensed entity as part of the requirements of an allied health course taught in the school if: i. The student is under the supervision of a licensed healthcare provider; and ii. The student has signed the affidavit that is on file at the student's school stating that he or she has not been convicted of or plead guilty or nolo contendere to a felony of possession or sale of drugs, murder, manslaughter, armed robbery, rape, sexual battery, any sex offenses listed in section 45-33-23(g), child abuse, arson, grand larceny, burglary, gratification of lust, aggravated assault, or felonious abuse and/or battery of a vulnerable adult, or that any such conviction or plea was reversed on appeal or a pardon was granted for the conviction or plea. iii. Further, applicants and employees of the University of Mississippi Medical Center for whom criminal history record checks and fingerprinting are obtained in accordance with Section 37-115-41 are exempt from application of the term employee under Section 41-75-13. d.Covered Entity. For the purpose of criminal history record checks, "covered entity" means a licensed entity or a healthcare professional staffing agency. e.Licensed Entity. For the purpose of criminal history record checks, the term "licensed entity" means an RBIR. f.Health Care Professional Vocational Technical Student. For purposes of criminal history record checks, the term means a student enrolled in a healthcare professional/vocational technical academic program. g.Direct Client Care or Services. For the purposes of fingerprinting and criminal background history checks, the term "direct client care" means direct hands-on medical client care and services provided by an individual to a client, in a client's room or treatment room. Individuals providing direct client care may be directly employed by the facility or provides client care on a contractual basis. h.Documented Disciplinary Action. For the purpose of fingerprinting and criminal background history checks, the term "documented disciplinary action" means any action taken against an employee for abuse or neglect of a client. 2. Pursuant to Section 43-1 1-13, Mississippi Code of 1972, the covered entity shall require to be performed a disciplinary check with the professional licensing agency, if any, for each employee to determine if any disciplinary action has been taken against the employee by the agency, and a criminal history record check on: a. Every new employee of a covered entity who provides direct client care or services; and b. Every employee of a covered entity who has documented disciplinary action by his or her present employer. 3. Except as otherwise provided in this paragraph, no employee shall be permitted to provide direct client care until the results of the criminal history record check have revealed no disqualifying record or the employee has been granted a waiver. Provided the covered entity has documented evidence of submission of fingerprints for the background check, any person may be employed and provide direct client care on a temporary basis pending the results of the criminal history record check but any employment offer, contract, or arrangement with the person shall be voidable, if he/she receives a disqualifying criminal record check and no waiver is granted. 4. If such criminal history record check discloses a criminal conviction; a guilty plea; and/or a plea of nolo contendere to a crime that is job-related which has not been reversed on appeal, or for which a pardon has not been granted, the applicant/employee may not be eligible to be employed at the licensed facility. Documentation of verification of the employee's disciplinary status, if any, with the employee's professional licensing agency as applicable, and evidence of submission of the employee's fingerprints to the licensing agency must be on file and maintained by the facility prior to the new employees first date of employment. The covered entity shall maintain on file evidence of verification of the employee's disciplinary status from any applicable professional licensing agency and of submission and/or completion of the criminal record check, a copy of the referenced notarized letter addressing the individual's suitability for such employment. 5. The licensing agency may charge the covered entity submitting the fingerprints a fee not to exceed Fifty Dollars ($50.00). 6. Should results of an employee applicant's criminal history record check reveal no disqualifying event, then the covered entity shall, within two (2) weeks of the notification of no disqualifying event, provide the employee applicant with a notarized letter signed by the chief executive officer of the covered entity, or his or her authorized designee, confirming the employee applicant's suitability for employment based on his or her criminal history record check. An employee applicant may use that letter for a period of two (2) years from the date of the letter to seek employment at any covered entity licensed by the Mississippi State Department of Health without the necessity of an additional criminal record check. Any covered entity presented with the letter may rely on the letter with respect to an employee applicant's criminal background and is not required for a period of two (2) years from the date of the letter to conduct or have conducted a criminal history record check as required in this subsection. 7. For individuals contracted through a third party who provide direct client care as defined herein, the covered entity shall require proof of a criminal history record check. 8. Pursuant to Section 41-75-13, Mississippi Code of 1972, the licensing agency, the covered entity, and their agents, officers, employees, attorneys and representatives, shall be presumed to be acting in good faith for any employment decision or action taken under this section. The presumption of good faith may be overcome by a preponderance of the evidence in any civil action. No licensing agency, covered entity, nor their agents, officers, employees, attorneys and representatives shall be held liable in any employment discrimination suit in which an allegation of discrimination is made regarding an employment decision authorized under this section. 15 Miss. Code. R. 16-1-4.10.6
Miss. Code Ann. § 41-75-13