15 Miss. Code. R. 16-1-1.15.3 - Criminal History Record Checks

1. 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 a covered entity provides patient care in a patient's, resident's, or client's room or in treatment rooms.

2. 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 patients in a licensed entity as part of the requirements of an allied health course taught in the school if:

A. The student is under the supervision of a licensed healthcare provider; and

B. 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.

C. 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 43-11-13.

3. Covered Entity - For the purpose of criminal history record checks, "covered entity" means a licensed entity or a healthcare professional staffing agency.

4. Licensed Entity - For the purpose of criminal history record checks, the term "licensed entity" means a hospital, nursing home, personal care home, home health agency or hospice.

5. Health Care Professional/Vocational Technical Academic Program - For purpose of criminal history record checks, "health care professional/vocational technical academic program" means an academic program in medicine, nursing, dentistry, occupational therapy, physical therapy, social services, speech therapy, or other allied-health professional whose purpose is to prepare professionals to render patient care services.

6. 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.

7. Direct Patient Care or Services - For the purposes of fingerprinting and criminal background history checks, the term "direct patient care" means direct hands-on medical patient care and services provided by an individual in a patient, resident or client's room, treatment room or recovery room. Individuals providing direct patient care may be directly employed by the facility or provides patient care on a contractual basis.

8. 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 patient.

9. Pursuant to Section 43-11-13, 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 patient care or services; and

B. Any individual seeking new employment with a covered entity whose initial criminal history record check is over two years.

C. Each employee of a covered entity employed prior to July 01, 2003, who has documented disciplinary action by his or her present employer and then every two years.

10. Except as otherwise provided in this paragraph, no employee hired on or after July 01, 2003, shall be permitted to provide direct patient care until the results of the criminal history 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 patient care on a temporary basis pending the results of the criminal history record check by any employment offer, contract, or arrangement with the person shall be voidable, if he/she receives a disqualifying criminal record check.

11. If such criminal history record check discloses a felony conviction; a guilty plea; and/or a plea of nolo contendere to a felony for one (1) or more of the following crimes which has not been reversed on appeal, or for which a pardon has not been granted, the applicant/employee shall not be eligible to be employed at the licensed facility:

A. Possession or sale of drugs

B. Murder

C. Manslaughter

D. Armed robbery

E. Rape

F. Sexual battery

12. Sex offense listed in Section 45-33-23, Mississippi Code of 1972:

A. Child abuse

B. Arson

C. Grand larceny

D. Burglary

E. Gratification of lust

F. Aggravated assault

13. Felonious abuse and/or battery of vulnerable adult

14. 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 submission and/or completion of the criminal record check, the signed affidavit, if applicable, and/or a copy of the referenced notarized letter addressing the individual's suitability for such employment.

15. Pursuant to Section 43-11-13, Mississippi Code of 1972, the covered entity shall require every employee of a licensed facility employed prior to July 01, 2003, to sign an affidavit stating that he or she does not have a criminal history as outlined in paragraph (c) above.

16. From and after December 31, 2003, no employee of a covered entity hired before July 01, 2003, shall be permitted to provide direct patient care unless the employee has signed the affidavit required by this section. The covered entity shall place the affidavit in the employee's personnel file as proof of compliance with this section.

17. If a person signs the affidavit required by this section, and it is later determined that the person actually had been convicted of or pleaded guilty or nolo contendere to any of the offenses listed herein, and the conviction or plea has not been reversed on appeal or a pardon has not been granted for the conviction or plea, the person is guilty of perjury as set out in Section 43-11-13, Mississippi Code of 1972. The covered entity shall immediately institute termination proceedings against the employee pursuant to the facility's policies and procedures.

18. The covered entity may, in its discretion, allow any employee unable to sign the affidavit required by paragraph (g) of this subsection or any employee applicant aggrieved by the employment decision under this subsection to appear before the licensed entity's hiring officer, or his or her designee, to show mitigating circumstances that may exist and allow the employee or employee applicant to be employed at the covered entity. The covered entity, upon report and recommendation of the hiring officer, may grant waivers for those mitigating circumstances, which shall include, but not be limited to:

(1) age at which the crime was committed;

(2) circumstances surrounding the crime;

(3) length of time since the conviction and criminal history since the conviction;

(4) work history;

(5) current employment and character references; and

(6) other evidence demonstrating the ability of the individual does not pose a threat to the health or safety of the patients in the licensed facility.

19. The licensing agency may charge the covered entity submitting the fingerprints a fee not to exceed Fifty Dollars ($50.00).

20. 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 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.

21. For individuals contracted through a third party who provide direct patient care as defined herein, the covered entity shall require proof of a criminal history record check.

22. Pursuant to Section 43-11-13, 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.

Notes

15 Miss. Code. R. 16-1-1.15.3

Miss. Code Ann. § 41-85-7

Amended 2/11/2018 Amended 8/15/2022 Amended 8/26/2022 Amended 2/13/2023