PROPOSED RULEMAKING
DEPARTMENT OF EDUCATION
[22 PA. CODE CH. 701]
Nurse Aide Applicant Criminal History Record Information
[28 Pa.B. 3412] The Department of Education (Department) proposes to add Chapter 701 (relating to nurse aide training program applicant criminal history record information) to read as set forth under the Nurse Aide Resident Abuse Prevention Training Act (act) (63 P. S. §§ 671--680). These proposed regulations implement the act.
The process of developing Chapter 701 was undertaken in accordance with section 6 of the act (63 P. S. § 676), which directs the Department to promulgate regulations necessary to carry out the criminal history record information requirements of the act. Section 6(2) of the act further requires that the regulations provide for the confidentiality of criminal history record information.
The proposed regulations define words and terms specific to this chapter to ensure a uniform interpretation across this Commonwealth. See § 701.1 (relating to definitions).
Section 701.2 (relating to compliance) states that the Department will ensure compliance with the act.
Sections 701.11--701.15 set forth the general responsibilities of facilities that sponsor State-approved nurse aide training programs. These entities are required to have all applicants obtain criminal history record information reports before they enroll in the training program. The reports are procured from the State Police for applicants living in this Commonwealth for 1 or more years and from the Federal Bureau of Investigation for all others. Sections 701.11--701.15 specify time-lines and procedures, provide for confidentiality of the criminal history record information, prohibit enrollment of persons who have committed certain offenses (as required by the act), require the sponsoring facilities to keep a file copy of the report (signed and dated by the designated personnel) and provide written notification to applicants who are denied enrollment because of information found in the criminal history record information.
Section 701.16 (relating to violations) sets forth who is responsible for reviewing the criminal history information and the procedures to complete the review. It also proposes that the facility administrators be subject to penalties if they fail to designate the appropriate personnel, otherwise the Department cannot ensure compliance.
Section 701.21 (relating to the responsibilities of the Department) sets forth the general responsibilities to determine compliance violations as stated in the act. This section specifies the procedures, notification of violations, hearings and possible civil penalty assessment.
Fiscal Impact and Paperwork Requirements
The proposed regulations would have a fiscal impact upon the Commonwealth at the State level. During the first full year the State Police project their fiscal impact at $31,940. This includes staffing and equipment. The Department may need to hire additional clerical assistance for the Federal Bureau of Investigation criminal background checks. This is estimated at $14,028. The proposed regulations would have no fiscal impact upon the local entities. The proposed regulations impose no new significant paperwork requirements beyond those required by the act. However, the Department will need to readjust the length of time for monitoring each nurse aide training program to review the criminal history record information for all enrolled nurse aide students.
Effective Date
The proposed regulations will take effect on the date of publication in the Pennsylvania Bulletin of the final adoption of the regulations.
Sunset Date
The effectiveness of proposed Chapter 701 will be reviewed by the Department every 4 years, in accordance with the Department's practice of examining all regulations. Thus, no sunset date is necessary.
Regulatory Review
Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on July 7, 1998, the Department submitted copies of these proposed regulations to the Independent Regulatory Review Commission (IRRC) and to the Chairpersons of the House and Senate Education Committees. In addition to submitting the proposed regulations, the Department has provided IRRC and the Committees with a copy of a detailed Regulatory Analysis Form prepared by the Department in compliance with Executive Order 1996-1 Regulatory Review and promulgation. A copy of this material is available to the public upon request.
If IRRC has objections to any portion of the proposed regulations, it will notify the Department within 10 days of the close of the Committees' review period. The notification shall specify the regulatory review criteria which have not been met by that portion. The Regulatory Review Act specifies detailed procedures for review, prior to final publication of the regulations, by the Department, the General Assembly and the Governor of objections raised.
Contact Person
Interested persons are invited to submit written comments, suggestions or objections regarding this proposal to Jane M. Acri, Vocational Services Supervisor, Bureau of Vocational-Technical Education, 333 Market Street, Harrisburg, PA 17126-0333 within 30 days following publication in the Pennsylvania Bulletin, (717) 787-5530.
Persons with disabilities needing alternative means of providing public comments may make arrangements by calling Jane Acri at (717) 783-6867 or TTY (717) 783-8445.
Alternative formats of the proposed chapter (such as, braille, large print, cassette tape) can be made available to members of the public upon request to Jane Acri at (717) 783-6867 or TTY (717) 783-8445.
EUGENE W. HICKOK,
SecretaryFiscal Note: 006-262. (1) General Fund; (2) Implementing Year 1998-99 is $Minimal; (3) 1st Succeeding Year 1999-00 is $Minimal; 2nd Succeeding Year 2000-01 is $Minimal; 3rd Succeeding Year 2001-02 is $Minimal; 4th Succeeding Year 2002-03 is $Minimal; 5th Succeeding Year 2003-04 is $Minimal; (4) Fiscal Year 1997-98 $Non-Applicable; Fiscal Year 1996-97 $; Fiscal Year 1995-96 $; (7) Department of Education, General Government Operations and Pennsylvania State Police, General Government Operations; (8) recommends adoption.
This regulation may result in minor administrative costs to the General Government Operations appropriation of the Department of Education for Federal Bureau of Investigation criminal background checks for certain applicants.
The regulation will result in increased costs to the General Government Operations appropriation of the State Police to perform the background checks on applicants. These costs are not expected to be significant and will be offset, to some extent, from increased revenue from the $10 fee.
Annex A
TITLE 22. EDUCATION
PART XIX. CRIMINAL HISTORY RECORD INFORMATION
CHAPTER 701. NURSE AIDE TRAINING PROGRAM APPLICANT CRIMINAL HISTORY RECORD INFORMATION
GENERAL Sec.
701.1. Definitions. 701.2. Compliance.
RESPONSIBILITIES OF FACILITIES AND DESIGNATED PERSONNEL
701.11. Submission of CHRI report. 701.12. Receipt of CHRI report by facility. 701.13. Nonacceptance of certain applicants. 701.14. Notification to applicant regarding CHRI report. 701.15. Confidentiality of information. 701.16. Violations.
RESPONSIBILITIES OF THE DEPARTMENT
701.21. Responsibilities of the Department.
GENERAL § 701.1. Definitions.
The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise:
Act--The Nurse Aide Resident Abuse Prevention Training Act (63 P. S. §§ 671--680).
Applicant--An individual applying for admission into a program.
CHRI--Criminal History Record Information--A report of criminal history from the State Police, or a statement that their central repository contains no information or, a report of criminal history from, or a statement that no information is on file with the Federal Bureau of Investigation.
Department--The Department of Education of the Commonwealth.
Enrollment--Approval of an applicant for admission in a program.
Facility--An institution or agency that sponsors a program.
Nurse aide--An individual providing nursing or nursing-related services to residents in a nursing facility or skilled nursing facility. The term does not include an individual who is a licensed health professional or an individual who volunteers to provide services without monetary compensation.
Program--The State-approved nurse aide training program.
§ 701.2. Compliance.
It is the policy of the Department to ensure compliance with the act.
RESPONSIBILITIES OF FACILITIES AND DESIGNATED PERSONNEL § 701.11. Submission of CHRI report.
The facility shall require an applicant to submit a CHRI report prior to enrolling as a nurse aide student into the program, according to one of the following:
(1) The facility shall require an applicant who has resided in this Commonwealth for a minimum of 1 year to obtain a CHRI report from the State Police.
(2) The facility shall require an applicant who has resided in this Commonwealth less than 1 year to obtain a CHRI report from the Federal Bureau of Investigation by contacting the Department for the required form.
§ 701.12. Receipt of CHRI report by facility.
In receiving and reviewing CHRI reports, the facility and its personnel shall do the following:
(1) The facility administrator shall designate in writing and at the administrator's discretion the appropriate facility personnel to review the CHRI report for enrollment eligibility and maintain a copy of the designation in the facility's file.
(2) The facility's designated personnel shall receive the applicant's original CHRI report.
(3) The facility's designated personnel shall review the CHRI report in the following manner:
(i) Make a photocopy of the original CHRI.
(ii) Sign and date the copy of the CHRI report.
(iii) Review the CHRI report for the offenses listed in § 701.13 (relating to nonacceptance of certain applicants).
(iv) Place the signed and dated copy of the CHRI report in a specific file for all CHRI reports.
(v) Return the original CHRI report to the applicant.
§ 701.13. Nonacceptance of certain applicants.
The facility and its designated personnel may not enroll a nurse aide applicant whose CHRI indicates the applicant has been convicted of any of the following offenses:
(1) An offense designated as a felony under The Controlled Substance, Drug, Device and Cosmetic Act (35 P. S. §§ 780-101--780-144).
(2) An offense under one or more of the following provisions of 18 Pa.C.S. (relating to crimes and offenses):
(i) Chapter 25 (relating to criminal homicide).
(ii) Section 2702 (relating to aggravated assault).
(iii) Section 2901 (relating to kidnapping).
(iv) Section 2902 (relating to unlawful restraint).
(v) Section 3121 (relating to rape).
(vi) Section 3122.1 (relating to statutory sexual assault).
(vii) Section 3123 (relating to involuntary deviate sexual intercourse).
(viii) Section 3124.1 (relating to sexual assault).
(ix) Section 3125 (relating to aggravated indecent assault).
(x) Section 3126 (relating to indecent assault).
(xi) Section 3127 (relating to indecent exposure).
(xii) Section 3301 (relating to arson and related offenses).
(xiii) Section 3502 (relating to burglary).
(xiv) Section 3701 (relating to robbery).
(xv) A felony offense under Chapter 39 (relating to theft and related offenses) or two or more misdemeanors under Chapter 39.
(xvi) Section 4101 (relating to forgery).
(xvii) Section 4114 (relating to securing execution of documents by deception).
(xviii) Section 4302 (relating to incest).
(xix) Section 4303 (relating to concealing death of child).
(xx) Section 4304 (relating to endangering welfare of children).
(xxi) Section 4305 (relating to dealing in infant children).
(xxii) Section 4952 (relating to intimidation of witnesses or victims).
(xxiii) Section 4953 (relating to retaliation against witness or victim).
(xxiv) A felony offense under section 5902(b) (relating to prostitution and related offenses).
(xxv) Section 5903(c) or (d) (relating to obscene and other sexual materials and performances).
(xxvi) Section 6301 (relating to corruption of minors).
(xxvii) Section 6312 (relating to sexual abuse of children).
(3) A Federal or out-of-State offense similar in nature to those crimes listed under paragraphs (1) and (2).
§ 701.14. Notification to applicant regarding CHRI report.
The facility's designated personnel shall notify the applicant in writing that is clear and understandable, if the decision not to admit the applicant is based in whole or in part on the CHRI report.
§ 701.15. Confidentiality of information.
(a) The facility's designated personnel shall establish two policies to ensure that:
(1) The confidentiality of the CHRI report is maintained by placing it in a locked file cabinet or similar storage area.
(2) The CHRI report is not available to anyone who is not directly involved in evaluating the applications for enrollment into the program, except State and Federal personnel who monitor the program.
(b) The Department will record the name of the designated facility personnel.
§ 701.16. Violations.
An individual who is responsible for reviewing and approving applications for enrollment into the program (that is the facility's designated personnel) and who willfully fails to comply with § 701.12(2) and (3) or § 701.13 (relating to receipt of CHRI report by facility; and nonacceptance of certain applicants) shall be subject to a civil penalty as provided for in § 701.21 (relating to responsibilities of the Department).
RESPONSIBILITIES OF THE DEPARTMENT § 701.21. Responsibilities of the Department.
(a) The Department will determine compliance violations.
(b) As part of the routine monitoring of facilities, the Department's monitoring staff will review the facility's files of nurse aide students who are enrolled in the program after ______. (Editor's Note: The blank refers to the effective date of adoption of this proposal.)
(c) The Department will receive and investigate complaints which allege violations of the act or this chapter.
(d) Based upon the information gathered as part of its routine monitoring or its investigation of a complaint, the Department may hold a hearing to determine violations of § 701.16 (relating to violations).
(1) The procedures for a hearing will conform to 2 Pa.C.S. (relating to administrative law and procedure).
(2) After the hearing, the Department may assess a civil penalty of not more than $2,500 per violation.
[Pa.B. Doc. No. 98-1150. Filed for public inspection July 17, 1998, 9:00 a.m.]
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