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Viewing: Criminal History Records Checks for Contractors, 04-104

Current Status: Active PolicyStat ID: 930754

Criminal History Records Checks for Contractors, 04-104

FULL IMPLEMENTATION DATE - August 15, 2014

APPLICABILITY

All Contractors as defined in this policy

POLICY

DBHDD strives to protect the health and safety of all individuals served and safeguard state property. DBHDD policy requires that reasonable efforts be made to provide safe and secure environments for individuals, staff, and any other work-related contacts. Based on this objective, any person who is under contract to provide services for DBHDD must undergo a fingerprint-based criminal history record check. Additionally, all employees of contractors and anyone contracting to perform direct care, treatment, custodial responsibilities, or any combination thereof, must also undergo a fingerprint-based criminal history record check.

DBHDD recognizes EEOC guidance that exclusionary employment policies should be job related and consistent with business necessity to avoid potential disparate impact on race and national origin. For these reasons, DBHDD conducts criminal background checks targeted to consider the following factors:

  • the nature and gravity of the offense;
  • the amount of time elapsed since the date of offense; and
  • the nature of the position being sought in relation to the offense.

DBHDD provides individualized assessments to ensure that it only excludes persons from employment for reasons which are job related and consistent with business necessity. Applicants with an unfavorable criminal history may request an individualized assessment. Through the individualized assessment process, DBHDD gives applicants an opportunity to show evidence of correctional rehabilitation. Evidence offered by the applicant during the individualized assessment must provide clear and convincing evidence of correctional rehabilitation and predict with a high degree of probability that the applicant can safely perform the job for which he/she applied.

The individualized assessment process supports DBHDD’s focus on recovery. DBHDD recognizes that individuals with a history of mental health and/or substance abuse diagnoses can and do recover. The assessment process enhances the ability of DBHDD to facilitate the hiring of individuals who can share life experiences of recovery and offer a unique form of support and encouragement to others.

DEFINITIONS

Contractor – For the purposes of this policy, the term “contractor” includes all organizations that provide mental health, addictive diseases, and/or developmental disability services that are financially supported in whole or in part by funds authorized through DBHDD.

Conviction – For the purposes of this policy, the term “conviction” or “conviction of a crime” refers to a finding or verdict of guilty, a plea of guilty or a plea of nolo contendere (no contest) regardless of whether an appeal of the conviction has been sought.

Criminal Drug Offense – For the purposes of this policy, “criminal drug offense” means a violation of the Georgia Controlled Substances Act, Title 16 Chapter 13 of the Georgia Code.

Employee – For the purposes of this policy, the term “employee” refers to any person who is performing services, including direct care, treatment, custodial responsibilities, or any combination thereof, on behalf of a Contractor.

Felony – For the purposes of this policy, “felony” means a crime, other than a criminal drug offense, punishable by death, by imprisonment for life, or by imprisonment for more than twelve (12) months.

Individual – For the purposes of this policy, the term “individual” is used to refer to any person who receives or participates in mental health, addictive diseases, and/or developmental disabilities services that are financially supported in whole or in part by funds authorized by DBHDD.  This replaces the term "consumer" which was in previous versions of this policy.

Misdemeanor – For the purposes of this policy, “misdemeanor” means any crime other than a felony or criminal drug offense.

PROCEDURES

  1. General Provisions
    1. Any person or entity which contracts with DBHDD including any employees of such person or entity, who have direct care, treatment, custodial responsibilities, or any combination thereof, for any individual served by DBHDD, must undergo an initial screening which includes a fingerprint based criminal history record check.
    2. Each Contractor is responsible for ensuring that a criminal history record check is completed on each employee, and that the results are reviewed by the DBHDD Office of Incident Management and Investigations/ Background Investigation Section, in accordance with this policy.
    3. Contractor must have documentation from DBHDD verifying that an applicant is eligible for hire prior to the applicant performing any services on behalf of a Contractor, including direct care, treatment, custodial responsibilities, or any combination thereof, for any individual served by DBHDD.
  2. Crimes that may Restrict Employment as a Contractor or Contractor Employee
    1. Applicants who have been convicted of a crime listed in this section, or any other offense committed outside the State of Georgia that would have been considered one of these crimes if committed in Georgia, will not be eligible to perform services for DBHDD on behalf of the contractor as indicated below unless the applicant has been otherwise deemed eligible after an individualized assessment as outlined in Section L of this policy.
      1. Felonies
        1. Serious Violent Felonies (Georgia Code Section 17-10-6.1)
          An applicant may not provide services for DBHDD from the date of conviction, for the following:
          • Murder or felony murder, as defined in Code Section 16-5-1;
          • Armed robbery, as defined in Code Section 16-8-41;
          • Kidnapping, as defined in Code Section 16-5-40;
          • Rape, as defined in Code Section 16-6-1;
          • Aggravated child molestation, as defined in subsection (c) of Code Section 16-6-4, unless subject to the provisions of paragraph (2) of subsection (d) of Code Section 16-6-4;
          • Aggravated sodomy, as defined in Code Section 16-6-2;
          • Aggravated sexual battery, as defined in Code Section 16-6-22.2; or
          • Any felony which involves the use or threat of physical force or violence against any person (“Forcible Felony” as defined by Georgia Code Section 16.1-3(6); e.g. aggravated assault, aggravated battery, manslaughter, first degree arson, etc.).
        2. Other Felonies
          An applicant may not provide services for DBHDD for a period of five (5) years from the date of conviction, for any other felony, and must have no change in his/her criminal history during the thirty-six (36) months immediately preceding the date of review.
        3. Repeat Offender/Career Criminal
          Applicants who have been previously convicted three (3) times under Georgia law of felonies, or under the laws of any other state or the United States of crimes which would be felonies if committed within this state (e.g. a “career criminal” as defined by Georgia Code Section 35-3-30) may not provide services for DBHDD.
      2. Misdemeanors
        An applicant may not provide services for DBHDD for a period of three (3) years from the date of conviction, for any misdemeanor which involves the use or threat of physical force or violence against any person (“forcible misdemeanor” Georgia Code Section 16.1-3(7)) (e.g. simple assault, simple battery, terroristic threats, affray, etc.) or any misdemeanor offense involving theft set forth in Title 16, Chapter 8 of the Georgia Code.
  3. Criminal Drug Offenses
    1. Applicants who have an arrest awaiting final disposition or who have been convicted of a criminal drug offense will be ineligible to provide services for DBHDD as follows:
      1. Disqualification to provide services in any position for a period of two (2) years from the date of conviction for the first felony offense or one (1) year from the date of conviction for the first misdemeanor offense.
      2. Disqualification to provide services in any position for a period of five (5) years from the most recent conviction for the second or subsequent felony offense or two (2) years from the date of conviction for the second or subsequent misdemeanor offense.
      3. Pattern of Drug Related Convictions: Applicants may be disqualified from providing services to DBHDD for a period of up to five (5) years; if the applicant has had three (3) or more Drug Related Convictions within the last seven (7) years. The prohibition will be counted from the date of last conviction.
  4. Additional Documentation
    1. DBHDD reserves the right to request additional supporting documentation as necessary to make a final eligibility determination.
  5. Pending charges and Outstanding Warrants
    1. An applicant awaiting final disposition on charges for any offense referenced in Section B or C of this policy may not provide services for DBHDD until such charges have been resolved.
    2. An applicant with an outstanding warrant for any offense referenced in Section B or C of this policy may not provide services for DBHDD.
  6. Persons Found Not Guilty by Reason of Insanity (NGRI)  
    1. An applicant found not guilty by reason of insanity of any offense referenced in Section B or C of this policy may not provide services for DBHDD without undergoing the individualized review process assessment and being approved for employment by the Review Committee.
    2. An applicant with criminal history indicating a NGRI verdict may request an individualized assessment as outlined in Section L of this policy.
  7. Persons applying for positions at a Nursing Home or Personal Care Home
    1. In addition to the requirement contained in this policy, persons applying to provide services at a Nursing Home or a Personal Care Home must meet requirements for employment set forth by the Department of Community Health (DCH) including, but not limited to, requirements set forth in Chapter 7 Title 31 of the Georgia Code and applicable federal statutes and regulations. If the applicant has completed the Administrative Appeal Process through DCH and has been approved to work in a facility regulated by DCH, DBHDD will accept that determination as part of the DBHDD approval process.
  8. Release of Criminal History Record Information
    1. FBI regulations permit DBHDD to obtain a more comprehensive, fingerprint-based criminal history record than that which can be obtained by provider agencies and/or contractors. Thus, DBHDD contractually requires all contractors/provider agencies to submit fingerprints for DBHDD to review.
    2. Additionally, Georgia Code 37-1-28 prohibits DBHDD from disseminating any conviction data it receives on an applicant. Accordingly, DBHDD must determine on behalf of the contractors/provider agencies whether an applicant meets eligibility criteria to provide direct care services.
    3. Nothing in this Policy, however, is intended to restrict contractor/provider agencies from utilizing more stringent criteria than those used by DBHDD when making hiring decisions. In fact, DBHDD encourages contractors/provider agencies to independently utilize all available information when making eligibility and hiring decisions, including conducting their own background checks, thoroughly checking references, conducting interviews, and considering the specific nature and responsibilities of the job for which the applicant is applying.
  9. Fingerprinting of Contractor and Contractor Employees
    1. DBHDD contractors and contractor employees that provide services for DBHDD must submit to a fingerprint based criminal background check.
    2. Fingerprinting must be conducted prior to employment.
    3. Specifically trained DBHDD personnel review the Criminal History Record Information and provide a determination as to the eligibility of the applicant to provide services for DBHDD by contractor or on behalf of the contractor, within seven (7) business days of the receipt of the criminal record information.
    4. Contractors who require fingerprinting must register their agency with the State Approved Vendor authorized to capture and submit fingerprint images for comparison with the Georgia and Federal Criminal Record Databases. To obtain information on how to register with the State Approved Vendor, go to the following website and follow the prompts:
      1. www.ga.cogentid.com
      2. Under General Information click the link "How to get an ORI or OAC Number" and follow the instructions provided.
    5. Contractors are responsible for the proper registration of their employees. DBHDD assumes no liability for registration errors that create additional costs for reprinting.
    6. Contractors or their designee are responsible for contacting the DBHDD Background Investigation Section for accurate registration information if they are not sure of the proper procedure to register an applicant/employee that will provide services for DBHDD. To obtain information on the proper registration of applicants for DBHDD:
      1. Visit www.dbhdd.georgia.gov and select “Provider Information” and then select the link to "Background Policy and Cogent Information."
      2. Visit www.ga.cogentid.com and click on the link to the “Department of Behavioral Health and Developmental Disabilities.” Then select the link to “Provider Information” and click on the link "Background Policy and Cogent Information".
    7. DBHDD Background Investigation Section cannot process inaccurate or invalid official documents or criminal records.
    8. Within three (3) business days of the receipt of incorrect information, such as invalid court documents or criminal record requests, Background Investigation Section staff will notify the involved party of the issue and the corrective action that must be taken in order to properly review the criminal record.
    9. Unless otherwise agreed, the cost of applicant/employee fingerprinting is paid by the contractor.
  10. Notice from the Office of Incident Management and Investigations/ Background Investigations Section
    1. The Background Investigations Section makes eligibility letters available to contractors in an electronic format through the Criminal History Record Information System (CHRIS) database.
      1. Each contractor will be responsible for maintaining their own Internet capabilities in order to obtain results from the CHRIS system.
      2. The DBHDD Background Investigation System will publish eligibility results via a designated website. Unless there is a DBHDD CHRIS system outage for more than three (3) business days, the Background Investigation Section will not Fax, Email, or Mail posted eligibility results.
      3. DBHDD contractors must provide the Background Investigations Section with their agency name; contact name, agency email address, and phone number in order to obtain background results.
      4. DBHDD contractors will be registered in the CHRIS system and provided a User ID and Password in order to retrieve their own agency results.
      5. Eligibility letters will be retrieved using the applicants Registration ID that is created when the applicant is registered for fingerprinting.
      6. Contractors can only retrieve THEIR OWN applicant results. Retrieving another agency’s applicant results is Strictly Prohibited and is a violation of the Georgia Computer Systems Protection Act (O.C.G.A. 16-9-90, et seq,).
    2. If the written determination from the Background Investigation Section indicates the applicant is eligible to provide services, then no further action by the contractor is necessary.
    3. The applicant shall be notified in writing by the Background Investigation Section if the determination from the Background Investigation Section indicates –
      1. The applicant is ineligible to provide services to DBHDD, as listed under Section C and F of this policy; and/or
      2. The applicant’s criminal history record information is missing a disposition or otherwise incomplete.
    4. The written notice shall –
      1. Advise applicant that he/she has thirty (30) calendar days from the date of the notice to challenge the accuracy of the records and/or request an individualized assessment;
      2. Include –
        1. An explanation of why the applicant was deemed ineligible for employment (e.g. conviction of disqualifying offense); and/or
        2. A description of what information is needed to complete the applicant’s criminal history record (e.g. specify missing disposition); and
      3. Outline the appropriate action necessary to complete final determination or individualized assessment by the Review Committee.
    5. An applicant will be deemed ineligible for employment if he/she fails to request an individualized assessment and/or provide any requested documentation within thirty (30) calendar days from the date of the notice.
    6. Anyone who refuses to provide requested Certified Copies of Court Documents, or discuss the pending issues, shall be ineligible to provide services for DBHDD, on behalf of the Contractor.

      Note: The Background Investigations Section has seven (7) business days from the time the record is received, to process the applicant/employee’s criminal record and generate an initial or final eligibility letter to the requesting agency.
  11. Rejected Fingerprint Images
    1. There are times when an applicant/employee's fingerprint images are rejected by either the Georgia or Federal Integrated Automated Fingerprint Identification System (IAFIS). In such cases, Background Investigations Section staff will follow all procedures outlined by the GBI and FBI regarding Rejection of Fingerprints and make notifications to agencies whose applicant(s) have been rejected, as appropriate.
  12. Individualized Assessments
    1. DBHDD provides an opportunity for an individualized assessment to applicants identified by the initial fingerprint based criminal background check as having a negative criminal history. The purpose of the individualized assessment is to determine if exclusion of the applicant from employment is job related and consistent with business necessity.
    2. Applicants who have been determined to be ineligible based on an initial review of his or her criminal record may request an individualized assessment of his or her record. The request for review must be in writing and submitted along with any supporting documentation/evidence to the Background Investigations Sections. (Examples of supporting documentation/evidence that will be considered by the Review Committee can be found in paragraph 13 of this Section.)
    3. When a request for individualized assessment has been made, a final exclusion determination will not be made until the Review Committee has had time to review and determine eligibility based on information submitted by the applicant.
    4. Additional time of ten (10) calendar days to gather documentation may be granted to the applicant provided he/she makes the request for more time prior to the expiration of the thirty (30) calendar days.
    5. Upon receiving the additional documentation, the Background Investigations Section staff will perform an initial review in which staff will review and consider documentation presented by the applicant that may include information that he/she was not correctly identified in the criminal record, or that the record is otherwise inaccurate.
    6. Background Investigations Section staff will forward all documentation submitted to the Individualized Assessment Review Committee (“Review Committee”).
    7. The Review Committee will consist of one representative from each of the following divisions/sections of DBHDD as appointed by the appropriate Deputy Commissioner:
      1. Addictive Diseases
      2. Mental Health
      3. Developmental Disabilities
      4. Legal
      5. Human Resources
      6. Office of Recovery Transformation
    8. Each committee member will select at least one designated alternate to be approved by the appropriate Deputy Commissioner. The designated alternate will be fully trained on the individualized assessment process and able to act as proxy for the committee member on an as needed basis.
    9. The Manager of the Background Investigations Section will serve as technical advisor for the Review Committee. Committee members may seek technical advice and guidance from the Manager as needed during the review process. The Manager will not, however, be a voting member of the Committee.
    10. Confidentiality of the applicant being reviewed must be maintained by all Committee members, including any person(s) whose advice or opinion is sought by the Committee before, during and after any individualized review.
    11. A quorum of the Review Committee will consist of at least three (3) Committee members, one of whom must be from the DBHDD Legal Services Section and another from the disability area related to the applicant’s potential job function..
    12. Decisions of the Committee to permit a contractor to further consider an applicant for employment in the position sought must be unanimous.
    13. Applicants requesting individualized review will remain ineligible to provide services to DBHDD until completion of the review process.
    14. Applicants requesting an individualized review have the burden of providing clear and convincing evidence sufficient to cause the Review Committee to believe to a high degree of probability that the applicant is fully rehabilitated to the extent necessary to safely perform the job for which he/ she has applied. Evidence considered by the Review Committee may include, but would not be limited to, the following:
      1. The nature and gravity of the offense
        1. Law enforcement report of arrest(s);
        2. The facts or circumstances surrounding the commission of the crime for which the applicant was initially deemed ineligible for employment;
        3. The nature of the harm caused to the victim(s) (i.e. physical, emotional, financial, permanent, (etc.);
        4. The age of the victim(s);
        5. Victim impact statements;
        6. Whether the applicant possessed or used a weapon during the commission of the crime;
        7. Whether the applicant planned and organized others and acted as a guiding force in the commission of the crime;
        8. The number of offenses for which the applicant was convicted;
        9. Age at the time of conviction;
        10. Whether the applicant was under the influence of drugs or alcohol at the time of the crime and/or experiencing severe symptoms of untreated mental illness (i.e. mania, psychosis, delusions, etc.).
      2. The amount of time elapsed since the date of offense
        1. When was disqualifying offense committed;
        2. When was applicants most recent arrest for any offense (disqualifying or not);
        3. Did applicant have any convictions for any offense(s) prior to disqualifying conviction, if so, what?
      3. Evidence of rehabilitation/recovery
        1. Probation/Parole Reports, if applicable;
          • Is applicant currently on probation/parole?
          • Any record/evidence of noncompliance with or violation of probation/parole;
        2. Whether the applicant cooperated with law enforcement post-arrest in the identification, arrest or conviction of others engaged in criminal activity (must be independently verifiable, i.e. notarized letter from prosecutor, parole/probation officer, court documents, etc.).
        3. Evidence that the individual performed the same type of work, post-conviction, with the same or a different employer, with no known incidents of criminal conduct;
        4. The length and consistency of employment history before and after the offense or conduct;
        5. Rehabilitation and/or recovery efforts of the applicant, (e.g., education/training, participation in treatment, certification as a Peer Support Counselor, notarized letter from therapist, etc.);
        6. Notarized employment or character references and any other information regarding fitness for the particular position. (DBHDD will not consider reference letters that are not notarized and will not consider verbal references.);
        7. Independently verifiable evidence of restitution to victims, if applicable (i.e. probation/parole reports; notarized letter from victim, prosecutor, law enforcement; court document, etc.); and
        8. Whether and to what extent the applicant’s lived experience may be beneficial to the position for which he/she is applying.
        9. Written statement from the applicant.
      4. The nature of the position being sought in relation to the offense
        1. Level of supervision provided by the employer as indicated in the job description for the position sought;
        2. Extent of direct contact with vulnerable individuals;
        3. Extent of access to funds/personal property of individuals;
        4. Extent of access to state or agency funds/property;
        5. Whether the applicant’s rehabilitation has connection to the position being sought;
        6. Whether rehabilitation efforts already accomplished by the applicant enable him/her to bring perspectives and/or skills that are relevant for the position for which he/she is applying.
      5. Other evidence
        1. Whether the applicant is bonded under a federal, state, or local bonding program. (Work Opportunity Tax Credit available for employers of federally-bonded persons);
        2. Any other evidence or circumstances indicating a reduced risk that the applicant will present a danger if employment is allowed (specify);
        3. Any documentation of support for the applicant submitted by the Contractor or employer of the applicant.
    15. If the applicant does not respond to the DBHDD’s attempt to gather additional information about his/her background described in Sections I, J and L, DBHDD may make its eligibility determination without the information.
    16. Upon receipt of request for an individualized assessment and, if applicable, receipt of additional documentation from the applicant, the Review Committee will conduct an individualized assessment of the applicant’s background and history, review any documentation submitted by the applicant, and notify the applicant of its decision.
    17. The exclusion from employment of an applicant by DBHDD shall not be considered final until the passing of the deadline for which applicant can request an individualized assessment or, if a request for assessment is received, after the deadline for applicant to submitted additional documentation. (See, Sections I and J for description of applicable deadlines.).
    18. DBHDD contractors are not required to delay or place hiring decisions on hold pending the outcome of any individualized assessment.
    19. Notice to Applicant: Once a final determination has been reached by the Review Committee, the Background Investigations Section will notify the applicant of the determination in writing, and update the CHRIS database to reflect the committee’s decision. All files will remain within the Background Investigations Section for storage and retention.
  13. Federal Registries
    1. Any applicant found to be excluded from participating for employment in a federal healthcare program shall be deemed Ineligible until the applicant can provide evidence that their exclusion from employment has been lifted by the Federal agency that placed them on the registry.
    2. DBHDD checks every applicant through the Department of Health and Human Services-Office of Inspector General's List of Excluded Individuals and Entities (LEIE) database.

LEGAL REFERENCES

O.C.G.A. § 31-7-350, et seq. and § 35-3-30 et seq.

O.C.G.A 37-1-28, Criminal Code of Georgia (O.C.G.A. Title 16)

Code of Federal Regulations 42, IV, § 483.420 (d) (1) (iiii)

Rules of the Georgia Crime Information Center (GCIC) Council

RELATED POLICIES

Criminal History Record Checks for DBHDD Employees, 22-504

Attachments:
Approver Date
Joetta Prost, Ph.D.: DBHDD Policy Director 2/22/2012
David LeNoir: Manager, Background Investigations Section 6/20/2014
Victoria Flynn, MSW: Director of Incident Management & Investigations 6/23/2014
Amy Howell: General Counsel 7/1/2014
Joetta Prost, Ph.D.: DBHDD Policy Director 7/2/2014