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PA Bulletin, Doc. No. 00-1276




[22 PA. CODE CH. 701]

Nurse Aide Applicant Criminal History Record Information

[30 Pa.B. 3776]

   The Department of Education (Department) adopts Chapter 701 (relating to nurse aide training program applicant criminal history record information) to read as set forth in Annex A under the Nurse Aide Resident Abuse Prevention Training Act (act) (63 P. S. §§ 671--680).

Purpose and Requirements

   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 and ensure compliance with the act. Section 6(2) of the act further requires that the regulations provide for the confidentiality of criminal history record information.

Comments and Responses

   Comments were received from the House Education Committee on August 31, 1998, the Senate Education Committee on September 1, 1998, and the Independent Regulatory Review Commission (IRRC) on September 21, 1998. Public comments were received from five Statewide health associations, two Statewide education associations and one nurse aide training facility.

Section 701.1.  Definitions--Clarity.

   Two commentators suggested that language be more clear for the ''nurse aide'' definition. The Department accepts the definition as stated in the act. IRRC and a commentator recommended some changes in wording to clarify § 701.1 and to be consistent with wording throughout the regulations. The Department agreed to make these changes in its final-form regulations.

Section 701.2.  Compliance--Need for Rule and Clarity.

   IRRC questioned the need to include the compliance statement in § 701.2. The Department agreed that this is not necessary on final-form rulemaking, but has included the statement as part of the Preamble's purpose and requirements.

Section 701.11.  Submission of Criminal History Record Information (CHRI) report--Legislative Intent.

   Some commentators suggested that secondary school students be exempted from the CHRI reports. They noted that CHRI reports do not show criminal offenses unless the student is convicted as an adult and completing the report would be a financial and paperwork burden imposed on school districts by § 701.11. IRRC and the Senate Education Committee agreed with the proposed regulations as written. The Department does not have the statutory authority to provide exemptions through regulations. Therefore, the Department has not made this change on the final-form rulemaking.

Section 701.11.  Submission of CHRI Report--Consistency with Statute and Clarity.

   A commentator recommended a 30-day grace period for receiving CHRI reports. The intent of the law is to have reports reviewed before the program begins to prevent a person convicted of offenses stated in the act from entering the program. The Department will leave § 701.11 as proposed. However, IRRC recommended some changes in wording to clarify § 701.11. The Department agreed to make these changes in § 701.11.

   IRRC, the Senate Committee and some commentators recommended that the residency requirements be changed to agree with the residency requirements in the Older Adults Protective Services Act (35 P. S. §§ 10225.101--10225.708). The Department accepts their recommendation and the residency requirements are changed on the final-form rulemaking.

   One commentator recommended that the CHRI report be completed by the Pennsylvania State Police (PSP) and the Federal Bureau of Investigation (FBI) for residents of less than 2 years. The FBI CHRI report is a Nationwide report and includes offenses on the PSP database. The Department believes the language as proposed is sufficient and no change will be made on the final-form rulemaking.

Section 701.11(1).  Receipt of CHRI Report by Facility--Need for Rule and Clarity.

   IRRC, the House and Senate Committees and some commentators recommended changes in wording (omit a phrase and clarify a word) be made in § 701.11(1). The Department agreed and these have been made on the final-form rulemaking.

Section 701.11(2).  Submission of CHRI Report--Need for Rule and Reasonableness.

   IRRC recommended that the applicant, who has resided in this Commonwealth less than the required residency time, obtain its FBI CHRI report directly from the FBI. The law is very explicit in charging the Department to enforce the provision of the act; and it is an FBI policy that applicants do not directly contact their agency to obtain CHRI reports. Furthermore, the Department is consistent with established procedures set forth in similar statutes and regulations, namely Act 34 (clearance for teachers). The Department has retained § 701.11(2) as originally proposed. In addition, recently passed act of May 12, 1999 (P. L. 63, No. 5) has specifically given the Department authority to do background checks on the applicants.

Section 701.12(1).  Receipt of CHRI report by facility--Need for Reasonableness.

   A commentator recommended that the position title and not the designated representative be responsible for receipt of the CHRI report. The Department leaves the language as stated.

Subsection 701.12(3)(i).  Receipt of CHRI report by facility--Consistency with Statute and Clarity.

   IRRC and a commentator recommended that flexibility be given to allow applicants to submit originals or copies of their CHRI reports. The Department agreed and changes have been made on the final-form rulemaking.

Section 701.15.  Confidentiality of Information--Reasonableness and Clarity.

   IRRC, the House and Senate Committees, and commentators suggested that two separate policies included unnecessary wording and are not needed. The Department agreed and the changes have been made on the final-form rulemaking.

Section 701.16.  Violations--Reasonableness and Clarity.

   One commentator recommended that the penalty be on the facility and not the designated representative. It is the intent of the law that the representative and not the facility be held in compliance. The Department has retained the regulation as proposed.

   The Department added an additional paragraph to provide clarity to § 701.16 as it relates to § 701.12(i).

   The Senate Committee expressed concern that two numbering systems for the proposed regulations were used. The numbering system for the proposed regulations were delivered to the Senate Committee on July 7, 1998 and were published at 28 Pa.B. 3412 (July 18, 1998). The Department recognizes that it is in the purview of the Legislative Reference Bureau to make changes and has used their numbering system in the final-form rulemaking.

Fiscal Impact and Paperwork Requirements

   The amendments have a fiscal impact upon this 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 FBI criminal background checks. This is estimated at $14,028 for the first year. The regulations would have no fiscal impact upon the local entities. The 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 in order to review the criminal history record information for all enrolled nurse aide students.

Effective Date

   These final-form regulations take effect on the date of publication in the Pennsylvania Bulletin.

Sunset Date

   The effectiveness of proposed Chapter 701 will be reviewed by the Department every 4 years. 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 18, 1998, the Department submitted a copy of the notice of proposed rulemaking, published at 28 Pa.B. 3412, to IRRC and to the Chairpersons of the House and Senate Committees on Education for review and comment.

   In compliance with section 5(c) of the Regulatory Review Act, the Department also provided IRRC and the Committees with copies of the comments received as well as other documentation. In preparing these final-form regulations, the Department has considered the comments received from IRRC, the Committees and the public.

   Under section 5.1(d) of the Regulatory Review Act (71 P. S. § 745.5a(d)), these final-form regulations were approved by the Senate Education Committee on June 5, 2000, and the House Education Committee on June 7, 2000 and were approved by IRRC on June 22, 2000, in accordance with section 5(c) of the Regulatory Review Act.

Contact Person

   The official responsible for information on the Department's process of promulgating these final-form regulations is Jane M. Acri, Vocational Services Supervisor, Bureau of Vocational-Technical Education, 333 Market Street, Harrisburg, PA 17126-0333, (717) 783-6867.


   The Department finds that:

   (1)  Public notice of the intention to adopt these regulations was given under sections 201 and 202 of the act of July 31, 1968 (P. L. 769, No. 240) (45 P. S. §§ 1201 and 1202) and the regulations promulgated there under in 1 Pa. Code §§ 7.1 and 7.2.

   (2)  A public comment period was provided as required by law and all comments were considered.

   (3)  The adoption of the regulations in the manner provided by this order is necessary and appropriate for administration of the authorizing statute.


   The Department, acting under the authorizing statute, orders that:

   (a)  The regulations of the Department, 22 Pa. Code Chapter 701, are amended by adding §§ 701.1, 701.11--701.16 and 701.21 to read as set forth in Annex A.

   (b)  The Secretary of Education will submit this order and Annex A to the Office of General Counsel and the Office of Attorney General for review and approval as to legality and form as required by law.

   (c)  The Secretary of Education shall certify this order and Annex A and deposit them with the Legislative Reference Bureau as required by law.

   (d)  This order is effective upon final publication in the Pennsylvania Bulletin.


   (Editor's Note:  For the text of the order of the Independent Regulatory Review Commission relating to this document, see 30 Pa.B. 3534 (July 8, 2000)).

   Fiscal Note:  Fiscal Note 6-262 remains valid for the final adoption of the subject regulations.

Annex A





701.01.      Definitions.


701.11.      Submission of CHRI report.
701.12.      Receipt and review 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.


701.21.      Responsibilities of the Department.


§ 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 its central repository contains no information; or a report of criminal history from the Federal Bureau of Investigation, or a statement that its files contain no information.

   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 the services without monetary compensation.

   Program--The State approved nurse aide training program.


§ 701.11.  Submission of CHRI report.

   The facility shall require an applicant to submit a CHRI report, which was obtained in the preceding 1-year period, prior to enrolling as a nurse aide student into the program, according to one of the following:

   (1)  The facility shall require all applicants who have resided in this Commonwealth for a minimum of 2 full years prior to their dates of application to obtain a CHRI report from the State Police.

   (2)  The facility shall require all applicants who have resided in this Commonwealth less than 2 full years prior to their dates of application to obtain a CHRI report from the Federal Bureau of Investigation by contacting the Department for the required form.

§ 701.12.  Receipt and review of CHRI report by facility.

   In receiving and reviewing CHRI reports, the facility shall do the following:

   (1)  The facility administrator shall designate in writing the appropriate facility representative, 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 representative shall receive the applicant's original CHRI report or a copy thereof.

   (3)  The facility's designated representative shall review the CHRI report in the following manner:

   (i)  Sign and date a copy of the CHRI report.

   (ii)  Review the CHRI report for the offenses listed in § 701.13 (relating to nonacceptance of certain applicants).

   (iii)  Place the signed and dated copy of the CHRI report in a specific file for all CHRI reports.

§ 701.13.  Nonacceptance of certain applicants.

   The facility and its designated representative may not enroll a nurse aide applicant whose CHRI report 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 paragraph (1) or (2).

§ 701.14.  Notification to applicant regarding CHRI report.

   The facility shall notify the applicant in writing which 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.

   The facility shall establish a policy that ensures the confidentiality of the CHRI report by placing it in a locked file cabinet or similar storage area and ensuring that 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.

§ 701.16.  Violations.

   (a)  An individual who is responsible for reviewing and approving applications for enrollment into the program (that is, the facility's designated representative) and who willfully fails to comply with § 701.12(2) and (3) or § 701.13 (relating to receipt and review of the 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).

   (b)  A facility administrator who willfully fails to comply with § 701.12(1) shall be subject to a civil penalty as provided in § 701.21.


§ 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 record the name of the designated facility representative and review the facility's files of all nurse aide students who are enrolled in the program after July 29, 2000.

   (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 the 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. 00-1276. Filed for public inspection July 28, 2000, 9:00 a.m.]


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