PURPOSE: This rule is being promulgated to establish the procedure by which persons with criminal convictions may seek a waiver allowing them to be employed by health care and mental health providers despite the hiring restrictions found in section 660.317, RSMo. The waivers are to be for “good cause” as defined by that statute. This rule sets forth both the procedure for seeking waivers and the facts and circumstances to be considered by the Department of Social Services in determining “good cause.”

1. (1) Definitions.

   1. (A) Applicant means a person who has been or would be rejected for employment by a provider due to the hiring restrictions found in section 660.317, RSMo Supp. 1998.
   2. (B) Determination means the decision issued by the director of the division based on the factual, procedural or causal issues of the request for waiver.
   3. (C) Director means the director of the Division of Aging.
   4. (D) Division means the Division of Aging of the Missouri Department of Social Services.
   5. (E) Good Cause Waiver means a finding that it is reasonable to believe that the restrictions imposed by section 660.317, RSMo Supp. 1998, on the employment of an applicant may be waived after an examination of the applicant’s prior work history and other relevant factors is conducted and demonstrates that such applicant does not present a risk to the health or safety of residents, patients or clients if employed by a provider.

   6. (F) Provider means any person, corporation or association who—

      1. 1. Is licensed as an operator pursuant to

Chapter 198, RSMo;

1. 2. Provides in-home services under con-

tract with the Department of Social Services;

1. 3. Employs nurses or nursing assistants

for temporary or intermittent placement in health care facilities;

1. 4. Is an entity licensed pursuant to

Chapter 197, RSMo; or

1. 5. Is a public or private facility, day pro-

gram, residential facility or specialized service operated, funded or licensed by the Department of Mental Health.

1. (G) Reference means a written statement of character, qualification or ability issued on behalf of the applicant by a person who is not related to or residing with the applicant requesting a good cause waiver.
2. (H) Sponsor means the current or potential employer of the applicant, or a training program, agency or school in which the applicant is or was a student enrolled for the purpose of earning a professional license, certification or otherwise becoming qualified to perform the duties of an occupation.

1. (2) Any person who is not eligible for employment by a provider due to the hiring restrictions found in section 660.317, RSMo Supp. 1998, may apply to the division for a good cause waiver. If the division determines that the applicant has demonstrated good cause, such restrictions prohibiting such persons from being hired by a provider shall be waived and such persons may be so employed unless rejected for employment on other grounds.

2. (3) The division shall accept an application for a good cause waiver only if the application—

   1. (A) Is submitted in writing by the applicant on the form provided by the division;
   2. (B) Is legible;
   3. (C) Is signed by the applicant under oath or affirmation;
   4. (D) Includes an attached explanation written by the applicant as to why the applicant believes he or she no longer poses a risk to the health, safety or welfare of residents, patients or clients;
   5. (E) Includes attached documentation on the applicant’s professional or occupational licensure, certification or registration history and current status in this state and any other state; and
   6. (F) Includes at least one (1) reference letter from a sponsor. If the applicant is not able to obtain a sponsor, the applicant shall so state and shall submit three (3) reference letters from individuals knowledgeable of the applicant’s character or work history who are not related to or residing with the applicant.
3. (4) The division will not consider any application for a good cause waiver unless it is fully completed, properly attested to or affirmed, and contains all required attachments.
4. (5) The division may, at any time during the application process or review thereof, request additional information from the applicant. If the applicant fails to supply any requested additional information within thirty (30) calendar days of the date of the request, unless the applicant requests and the division grants an extension, the division will consider the application for good cause waiver to be withdrawn by the applicant.
5. (6) The division shall review each completed application and may request the applicant, prior to the completion of the review, to appear in person to answer questions about his or her application. The division shall review and may investigate the information contained in each application for completeness, accuracy and truthfulness. The following factors shall be considered in determining 19 CSR 30-82

whether a good cause waiver should be granted:

1. (A) The applicant’s age at the time the crime was committed;
2. (B) The circumstances surrounding the crime;
3. (C) The length of time since the conviction;
4. (D) The length of time since the applicant completed his or her sentence for the disqualifying conviction(s), whether or not the applicant was confined, conditionally released, on parole or probation;
5. (E) The applicant’s entire criminal history including whether it shows a repetitive pattern of offenses;
6. (F) The applicant’s prior work history;
7. (G) Whether the applicant had been employed in good standing by a provider but subsequently became ineligible for employment due to the hiring restrictions in section 660.317, RSMo Supp. 1998;
8. (H) Whether the applicant has been convicted or found guilty of, or pled guilty or nolo contendere to any offense displaying extreme brutality or disregard for human welfare or safety;
9. (I) Whether the applicant has omitted a material fact or misrepresented a material fact pertaining to his or her criminal or employment history;
10. (J) Whether the applicant has ever been listed on the Employee Disqualification List maintained by the division as provided in section 660.315, RSMo 1994;
11. (K) Whether the applicant’s criminal offenses were committed during the time he or she was acting as a provider or as an employee for a provider;
12. (L) Whether the applicant has, while disqualified from employment by a provider, obtained employment by fraud, deceit, deception or misrepresentation, including misrepresentation of his or her identity;
13. (M) Any other information relevant to the applicant’s employment background or past actions indicating whether he or she would pose a risk to the health, safety or welfare of residents, patients or clients; and
14. (N) Whether the applicant has supplied all information requested by the division.

1. (7) If, at the time of an application for a waiver, or during the waiver consideration process, the applicant has been charged or indicted for, but not convicted of, any of the crimes covered under the provisions of section 660.317, RSMo, the division will hold the request for waiver in abeyance while such charges are pending or until a court of competent jurisdiction enters a judgment or order disposing of the matter. SENIOR SERVICES
2. (8) Each applicant who submits a waiver application meeting the requirements of section (3) of this rule shall be notified in writing by the director of the division or designee, as to whether his or her application has resulted in a determination of good cause or no good cause. Such notification shall be effective if sent to the applicant’s address given on the application.
3. (9) Any good cause waiver granted to an applicant applies only to the specific disqualifying conviction(s), finding(s) of guilt, plea(s) of guilty or nolo contendere, as contained in the certifying copies of the court documents which are required in the Application for a Good Cause Waiver (MO Form 886-3654).
4. (10) Any good cause waiver granted to an applicant applies only to those disqualifying criminal convictions covered under the provisions of section 660.317, RSMo Supp. 1998, and shall not apply to any other hiring restriction or exclusion imposed by any other federal or state laws or regulations.

5. (11) The division may withdraw a good cause waiver if it receives information or finds that—

   1. (A) The applicant has omitted a material fact or misrepresented a material fact in seeking a good cause waiver;
   2. (B) The applicant has been subsequently convicted or found guilty of, or pled guilty or nolo contendere to any class A or B felony violation of Chapter 565, 566, or 569, RSMo, or any violation of subsection 3 of section 198.070, RSMo, or section 568.020, RSMo, in this state or any other state;
   3. (C) The applicant has omitted, misrepresented or failed to disclose or provide any of the information required by section 660.317, RSMo Supp. 1998 or the provisions of this rule; or
   4. (D) There has been a material change in the circumstances upon which the good cause waiver was granted.
6. (12) If the good cause waiver is withdrawn by the division, the notice of such withdrawal shall be mailed by the division to the applicant’s last known address, with a copy of the notice sent to the applicant’s last known employer, if any.
7. (13) No applicant may be employed in a direct care or direct service position with a provider during the pendency of a request for waiver unless the applicant has been continuously employed by that provider prior to August 28, 1997.
8. (14) Applicants who have been denied a good cause waiver, or who have had their good cause waivers withdrawn by the division, may reapply one (1) time every twelve
9. (12) months, or whenever the circumstances related to the disqualifying conviction(s) have changed.

10. (15) Each provider shall be responsible for—

    1. (A) Requesting criminal background checks on all employment applicants, regardless of waiver status, in accordance with the provisions of sections 660.317 and 43.540, RSMo Supp. 1998; and
    2. (B) Contacting the division to confirm the validity of an applicant’s good cause waiver prior to hiring the applicant.
11. (16) All applications for good cause waivers and related documents shall become permanent records maintained by the division.

AUTHORITY: sections 660.017, 660.050 and 660.317, RSMo Supp. 1998.* This rule was originally filed as 13 CSR 15-10.060. Emergency rule filed March 1, 1999, effective March 30, 1999, expired Jan. 10, 2000. Original rule filed March 1, 1999, effective Sept. 30, 1999. Moved to 19 CSR 30-82.060, effective Aug. 28, 2001. *Original authority: 660.017, RSMo 1993, amended 1995; 660.050, RSMo 1984, amended 1988, 1992, 1993, 1994, 1995; and 660.317, RSMo 1996, 1997, 1998. SENIOR SERVICES SENIOR SERVICES