Tenn. Comp. R. & Regs. 1240-07-10-.09

Current through January 8, 2025

Section 1240-07-10-.09 - CRIMINAL BACKGROUND AND STATE REGISTRY REVIEW PROCEDURES

(1) Criminal Background and Abuse Registry Disclosures and Reviews; Fingerprinting Requirements.

(a) The following persons are required to undergo a criminal background check and registry reviews before having unsupervised access to any vulnerable adult in an adult day services center:

1. Any person who owns or operates an adult day services center and has significant contact with participants;

2. Any person who applies to work in an adult day services center as an employee, director, or manager; and

3. Any person who will volunteer in an adult day services center for more than thirty-six (36) hours in a calendar year and who is counted in the staff:participant ratio; and those volunteers who have unsupervised access to the adult participants in adult day services centers and who will volunteer in the center for more than thirty-six (36) hours.

(b) Requirements for Disclosure of Criminal/Juvenile and Administrative History and Fingerprinting.

1. The individuals identified in subparagraph (1)(a) above shall be required to:

(i) Complete a criminal/juvenile/administrative findings history disclosure form;

(ii) Submit fingerprint samples for a criminal and juvenile records background check; and

(iii) Complete a criminal background check/state registry review consisting of:

(I) An investigation of a person's criminal background history by the Tennessee Bureau of Investigation and through the Federal Bureau of Investigation's national database;

(II) An investigation of a person's juvenile records history that is available to the Tennessee Bureau of Investigation;

(III) A review of any available juvenile court records, if determined necessary by the Department;

(IV) A search of the vulnerable persons registry, maintained by the Tennessee Department of Health;

(V) A search of the sexual offender registry, maintained by the Tennessee Bureau of Investigation; and

(VI) A search of the Department of Children's Services registry of substantiated perpetrators of abuse or neglect of children.

(2) Responsibility for Providing Fingerprint Sample; Prohibition of Contact with Participants Prior to Completion of Criminal History Review.

(a) An adult day services center shall be responsible for obtaining and submitting the fingerprint sample of any person required by this rule in the form and manner directed by the Department. The person subject to the requirements of subparagraph (1)(b), and the entities with whom they will be, or are, associated, shall be required to provide any information necessary to process the criminal history review required by this paragraph prior to such person's assumption of any role described in subparagraph (1)(a). New background checks for existing employees who transfer to another adult day services center are only required for employees when the employee has been separated from employment from an adult day services center within the State for a period of more than 180 consecutive days.

(b) An adult day services center may not permit any person who is required to undergo a criminal background check and state registry review to assume any role described in subparagraph (1)(a) above for which the criminal background check/state registry review is required or to have access to participants before each of the required histories/records/registries have been checked to verify that the person does not have a criminal history or is not listed on a registry that would disqualify or otherwise exclude the person.

(c) Failure to Complete or Disclose Information on Criminal Disclosure Form.

1. The failure to properly complete all sections of the Criminal/Administrative History Disclosure Form shall result in the individual being prohibited from assuming any position or status for which a background review is required by T.C.A. § 71-3-507 and subparagraph (1)(a) of this rule.

2. The failure to disclose all criminal and administrative history information may result in the person being:

(i) Excluded by the Department from working, directing, managing, operating, volunteering, or acting as a licensee in any adult day services center licensed by the Department; and

(ii) Referred to the appropriate district attorney for criminal prosecution.

(d) Unless otherwise notified by the Department, the adult day services center shall be responsible for all costs associated with obtaining the fingerprint sample, and for the costs of the criminal background check by the Tennessee Bureau of Investigation. The adult day services center may be may require that the costs of the background check be a part of the application process by a prospective employee or volunteer, or it may pay the costs and recover the costs of the fingerprint-based background checks from the prospective employee following employment.

(3) Prohibited Criminal, Juvenile, Vulnerable Persons or Sex Offender Registry, Abuse or Neglect or Driving History; Exclusion from Contact with Participants.

(a) No person shall be employed with, be a licensee or operator of, or have any access whatsoever to participants in an adult day services center if the criminal background check identifies an excludable criminal offense for which the person has:

1. Been convicted of, pled guilty or no contest to, or to a lesser included offense;

2. Been, or currently is, the subject of a juvenile petition or finding that would constitute a criminal offense or lesser included offense if the child were an adult; or

3. Been named in a pending warrant, indictment, presentment, petition, pretrial or judicial diversion.

(b) An excludable criminal offense involves, generally:

1. The physical, sexual or emotional abuse or neglect of an adult or child;

2. A crime of violence against any human being;

3. Any offense (including a lesser included offense) involving the manufacture, sale, distribution or possession of any drug; or

4. Any offense that presents a threat to the health, safety or welfare of adults or children.

(c) No person may be employed as a driver or serve as a driver for an adult day services center if the person:

1. Is currently charged with; or

2. Has been convicted of, or pled guilty to, within the last five (5) years to one of the following criminal offenses:

(i) Vehicular homicide (T.C.A. § 39-13-213);

(ii) Accidents involving death or personal injury (T.C.A. § 55-10-101);

(iii) Accidents involving damage to a vehicle (T.C.A. § 55-10-102);

(iv) Driving under the influence of intoxicant, drug or drug producing stimulant (T.C.A. § 55-10-401); or

(v) Any felony involving the use of a motor vehicle while under the use of any intoxicant.

(4) Criminal offenses for which exclusion from access to adult care is required includes, but is not limited to, the following (including any as amended):

(a) Aggravated arson (T.C.A. § 39-14-302);

(b) Aggravated assault (T.C.A. § 39-13-102);

(c) Aggravated child abuse (T.C.A. § 39-15-402);

(d) Aggravated child neglect (T.C.A. § 39-15-402);

(e) Aggravated cruelty to animals (T.C.A. § 39-14-212);

(f) Aggravated kidnapping (T.C.A. § 39-13-304);

(g) Aggravated rape (T.C.A. § 39-13-502);

(h) Aggravated rape of a child (T.C.A. § 39-13-531);

(i) Aggravated robbery (T.C.A. § 39-13-402);

(j) Aggravated sexual battery (T.C.A. § 39-13-504);

(k) Aggravated sexual exploitation of a minor (T.C.A. § 39-17-1004);

(l) Aggravated vehicular homicide (T.C.A. § 39-13-218);

(m) Arson (T.C.A. § 39-14-301);

(n) Assault (T.C.A. § 39-13-101);

(o) Carjacking (T.C.A. § 39-13-404);

(p) Child abuse, child neglect or endangerment (T.C.A. § 39-15-401);

(q) Criminal attempt, under § 39-12-101, to commit any criminal offense that requires exclusion from child care;

(r) Criminal exposure to HIV (T.C.A. § 39-13-109);

(s) Criminal homicide (T.C.A. § 39-13-201);

(t) Criminally negligent homicide (T.C.A. § 39-13-212);

(u) Cruelty to animals (T.C.A. § 39-14-202);

(v) Custodial interference (T.C.A. § 39-13-306);

(w) Domestic abuse in violation of an order of protection or in violation of a restraining order (T.C.A. § 39-13-113);

(x) Domestic assault (T.C.A. § 39-13-111);

(y) Drug offenses (felony or misdemeanor, possession, manufacturing, sale, distribution, etc.);

(z) Especially aggravated burglary (T.C.A. § 39-14-404);

(aa) Especially aggravated kidnapping (T.C.A. § 39-13-305);

(bb) Especially aggravated robbery (T.C.A. § 39-13-403);

(cc) Especially aggravated sexual exploitation (T.C.A. § 39-17-1005);

(dd) Exploitation of a minor by electronic means (T.C.A. § 39-13-529);

(ee) False imprisonment (T.C.A. § 39-13-302);

(ff) First degree murder (T.C.A. § 39-13-202);

(gg) Incest (T.C.A. § 39-13-302);

(hh) Indecent exposure (T.C.A. § 39-13-511);

(ii) Involuntary labor servitude (T.C.A. § 39-13-307);

(jj) Kidnapping (T.C.A. § 39-13-105);

(kk) Rape (T.C.A. § 39-13-503);

(ll) Rape of a child (T.C.A. § 39-13-522);

(mm) Reckless endangerment (T.C.A. § 39-13-103);

(nn) Reckless homicide (T.C.A. § 39-13-215);

(oo) Robbery (T.C.A. § 39-13-401);

(pp) Second degree murder (T.C.A. § 39-13-210);

(qq) Sexual battery (T.C.A. § 39-13-505);

(rr) Sexual battery by an authority figure (T.C.A. § 39-13-527);

(ss) Sexual exploitation of a minor (T.C.A. § 39-17-1003);

(tt) Solicitation of a minor (T.C.A. § 39-13-528);

(uu) Stalking (T.C.A. § 39-17-315);

(vv) Statutory rape (T.C.A. § 39-13-506);

(ww) Statutory rape by an authority figure (T.C.A. § 39-13-532);

(xx) Trafficking a person for sexual servitude (T.C.A. § 39-13-309);

(yy) Vehicular assault (T.C.A. § 39-13-106);

(zz) Vehicular assault while intoxicated (T.C.A. § 39-13-106);

(aaa) Vehicular homicide (T.C.A. § 39-13-213);

(bbb) Voluntary manslaughter (T.C.A. § 39-13-211);

(ccc) Weapons offenses (unlawful possession, carrying, use, etc.);

(ddd) Aggravated burglary (T.C.A. § 39-14-403);

(eee) Burglary (T.C.A. § 39-14-402);

(fff) Criminal simulation (T.C.A. § 39-14-115);

(ggg) Extortion (T.C.A. § 39-14-112);

(hhh) Forgery (T.C.A. § 39-14-114);

(iii) Fraudulent use of a credit card (T.C.A. §§ 39-14-118, 39-14-105);

(jjj) Identity theft (T.C.A. § 39-14-150);

(kkk) Shoplifting (T.C.A. § 39-14-146);

(lll) Theft of property (T.C.A. § 39-14-103);

(mmm) Theft of services (T.C.A. § 39-14-104); or

(nnn) Worthless checks (T.C.A. § 39-14-121).

(5) Exclusion from access to an adult day services center based on a listing on a state registry.

(a) No person shall be employed with, be a licensee or operator of, or have any access whatsoever to participants in an adult day services center if the results of the state registry review or in the equivalent administrative registries or court records in any jurisdiction in which the person has resided in the past five (5) years identify the person as being:

1. Listed on the vulnerable persons registry, maintained by the Tennessee Department of Health;

2. Listed on the sexual offender registry, maintained by the Tennessee Bureau of Investigation; or

3. Substantiated in the records of the Department of Children's Services for abuse or neglect of a child.

(6) Supplemental Background Checks Subsequent to Licensing, Employment or Residence in an Adult Day Services Center.

(a) Pursuant to T.C.A. § 71-3-507(g)-(k), the Department may, at any time, require the review of the criminal, available juvenile records or administrative records of any individual with access, as determined by the Department, to participants in an adult day services center using the processes described in this chapter or in T.C.A. § 71-3-507, or by any other available means. All other provisions of this chapter and T.C.A. § 71-2403 applicable to any pre-employment or post-employment, residential or access status of any individual shall apply to any background reviews conducted pursuant to this paragraph and the results of such review.

(b) For an individual who was not subject to the background or records screening requirements required by this chapter prior to assuming a role described in subparagraph (1)(a), or prior to having access to participants in any other capacity, such individual's existing status in such role shall be conditional upon the satisfactory outcome of any requested criminal/juvenile/administrative history disclosure, fingerprint record background check, and any vulnerable persons registry or the sex offender registry check, or any review of substantiated abuse or neglect perpetrator status with the Departments of Children's or Human Services that may be conducted pursuant to this subparagraph.

(7) Appeal of exclusion from access to an adult day services center.

(a) A person that has been excluded from access to an adult day services center due to a criminal offense or state registry listing or in equivalent administrative registries or court records has the right to appeal the exclusion. The appeal is limited to the consideration of:

1. Whether the person being excluded is in fact the person identified in the criminal history records or registry listing that was used to determine that the person must be excluded; or

2. Whether the crime or listing which is the basis for the exclusion has been dismissed, resulted in an acquittal, nolled, or expunged, so that the person should not be excluded.

(b) The person must make a written request for an appeal within ten (10) days of the mailing date of the letter notifying him/her of the exclusion to the DHS Division of Appeals and Hearings. If timely appealed, the Department shall provide an administrative hearing pursuant to the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, part 3.

(8) Requests for a waiver from exclusion from access to an adult day services center.

(a) A person that has been excluded from an adult day services center access due to a criminal offense or registry listing has the option of requesting a waiver from the exclusion. The request for a waiver is sent to the Director of Adult and Child Care Licensing. A waiver will be granted only if the person can show that extenuating circumstances exist that clearly justify granting a waiver.

(b) The request for a waiver shall state the basis for the request, including any extenuating or mitigating circumstances that would, in the individual's opinion, clearly warrant an exemption from the exclusion. Any documentary evidence may also be submitted with the request. Waivers shall be based upon extenuating circumstances that clearly warrant consideration of an exemption.

(c) Requests for waivers shall be reviewed by an advisory committee in accordance with the provisions of T.C.A. § 71-3-507. The committee shall make a recommendation to the Director of whether to grant or deny the waiver request. The Director shall make the final decision.

(d) Any person who is the subject of an exclusion who is dissatisfied with the decision of the Director of Licensing regarding a waiver must make a written request for an appeal within ten (10) days of the mailing date of the letter notifying him/her of the exclusion to the DHS Division of Appeals and Hearings. If timely appealed, the Department shall provide an administrative hearing pursuant to the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, part 3.

(9) Any person who is excluded from providing care or services or having access to participants under any provisions of this chapter shall remain excluded pending the outcome of any appeals or exemption review or any determination that the basis for exclusion no longer exists.

(10) Nothing in this chapter shall be construed to prevent the exclusion of any individual from providing care for, or from being licensed for the care of, participants pursuant to this chapter or from having access to a participant in an adult day services center if a criminal or juvenile proceeding, registry or administrative background requiring exclusion under T.C.A. 71-2-403 or any provision of law is discovered and verified in any other manner other than through a procedure established pursuant to this chapter. All procedures, rules, and appeal processes established pursuant to this chapter for the protection of participants and the due process rights of excluded individuals shall also be applicable to such individuals.

(11) Exclusion of persons who currently have access to adult care.

(a) A center shall immediately notify the Department if it receives information, either through first-hand knowledge or via a third party, that a person who is operating, working in, volunteering at, or has any access whatsoever to the adult day services center:

1. Is currently charged with a criminal offense;

2. Has a criminal conviction; or

3. Is listed on the state vulnerable persons registry, sexual offender registry, or Department of Children's Services substantiated perpetrator registry.

(b) Such notification shall be made by telephoning the Department within twenty-four (24) hours of receiving such information. This shall include all information received by the center that was not included in the criminal background check/state registry review that was required to be conducted prior to the person assuming any role at the center.

(c) The exclusion of such persons from access to an adult day services center shall be pursuant to T.C.A. § 71-2-403 and paragraphs (3)-(5), above.

(12) The failure of an adult day services center to immediately exclude individuals with a criminal background history or state registry review status that requires exclusion pursuant to T.C.A. § 71-2-403 and this rule, as directed by the Department, shall be the basis for the immediate suspension, denial or revocation of the adult day services center's license.

Tenn. Comp. R. & Regs. 1240-07-10-.09

Original rule filed December 14, 1999; effective 2/27/2000. Repeal and new rule filed February 23, 2018; effective 5/24/2018. Amendments filed October 25, 2022; effective 1/23/2023.

Authority: T.C.A. §§ 4-5-201, et seq.; and 71-2-401, et seq.