PURPOSE: This rule establishes standards for obtaining background screening for certain staff and volunteers in residential facilities, day programs or specialized service operated or funded by the Department of Mental Health.

1. (1) For the purposes of this rule, residential facilities, day programs and specialized services are divided into two (2) categories, as follows:

   1. (A) Category I. Those that are certified or licensed exclusively by the Department of Mental Health (DMH) or, although not certified or licensed, are funded by the department. Specifically this category includes:

      1. 1. Agencies certified by DMH as com-

munity psychiatric rehabilitation programs (CPRP), comprehensive substance abuse and treatment and rehabilitation programs (CSTAR), residential and/or outpatient programs;

1. 2. Agencies certified by DMH in the

community-based waiver certification program;

1. 3. Agencies certified by the Division of

Alcohol and Drug Abuse;

1. 4. Facilities that have contractual

arrangements with the department but are exempt from the department’s licensing and certification rules due to accreditation or other reason; and

1. 5. Facilities and day programs which are

licensed by the department and do not have a license from another state agency; and

1. (B) Category II. Those that, in addition to a license or certificate from DMH, have a license or certification from another state agency. Specifically, this category includes facilities licensed by the Children’s Division or the Department of Health and Senior Services; also included are intermediate care facilities/mental retardation (ICF/MR). Facilities and agencies included in Category II are subject to rules regarding criminal record review as promulgated by the state agency which licenses or certifies them and are not subject to sections (2) through (7) of this rule. However such agencies are subject to sections (8), (9), (10) and (11).

1. (2) This rule applies to—

   1. (A) Staff;
   2. (B) Volunteers who are recruited as part of an agency’s formal volunteer program but does not apply to volunteers who assist individuals as a friend would by providing assistance with shopping, transportation, recreation, etc.; and
   3. (C) Members of the provider’s household who have contact with residents or clients, except for minor children.

2. (3) Each residential facility, day program or specialized service defined under Category I above shall make the following inquiries for all new employees and volunteers:

   1. (A) An inquiry with the Department of Health and Senior Services to determine whether the new employee or volunteer having contact with residents or clients is listed on the employee disqualification list of the Department of Social Services or the Department of Health and Senior Services;
   2. (B) An inquiry with the Department of Mental Health to determine whether the new employee or volunteer is on the DMH disqualification registry; and
   3. (C) A criminal background check with the State Highway Patrol. The request for the background check shall not require fingerprints and shall be in accordance with requirements of the State Highway Patrol under Chapter 43, RSMo. The facility, program or service may use a private investigatory agency to conduct this review.
3. (4) The criminal background check and inquiries required under section (3) of this rule shall be initiated prior to the employee or volunteer having contact with residents, clients or patients.

4. (5) Each residential facility, day program and specialized service included under Category I shall require all new applicants for employment or volunteer positions involving contact with residents or clients to—

   1. (A) Sign a consent form authorizing a criminal record review with the highway patrol, either directly through the patrol or through a private investigatory agency;
   2. (B) Disclose his/her criminal history, including any conviction or a plea of guilty to a misdemeanor or felony charge and any suspended imposition of sentence, any suspended execution of sentence or any period of probation or parole; and
   3. (C) Disclose if s/he is listed on the employee disqualification list of the Department of Social Services or the Department of Health and Senior Services, or the DMH disqualification registry.

5. (6) Each agency shall develop policies and procedures regarding the implementation of this rule and the disposition of information provided by the criminal record review. At a minimum the guidelines shall address—

   1. (A) Procedures for obtaining the criminal record review;
   2. (B) Procedures for confidentiality of records; and
   3. (C) Guidelines for evaluating information received through the criminal record review which establish a clear boundary between those convictions which, by statute, must exclude an individual from service, and those convictions which would not automatically exclude an individual.

6. (7) Offenses which under section 630.170, RSMo disqualify a person from service are as follows:

   1. (A) A person shall be disqualified from holding any position in the agency if that person—

      1. 1. Has been convicted of, found quilty

of, pled guilty to or nolo contendere to any of the following crimes.

1. A. Physical abuse or Class I Neglect

of a patient, resident or client; or

1. B. Furnishing unfit food to patients,

residents or clients.

1. 2. Is listed on the DMH disqualification

registry; or

1. 3. Is listed on the employee disqualifica-

tion list of the Department of Health and Senior Services or Department of Social Services.

1. (B) A person who has been convicted of, found guilty to, pled guilty to or nolo contendere to any of the following crimes shall be disqualified from holding any position having contact with patients, residents or clients in the agency. The crimes listed below are not disqualifying unless they are felonies, except for failure to report abuse and neglect to the Department of Health and Senior Services, which is a Class A misdemeanor. The disqualifying crimes are:

   1. 1. First or second degree murder;
   2. 2. Voluntary manslaughter (includes

assistance in self-murder);

1. 3. Involuntary manslaughter;
2. 4. First or second degree assault;
3. 5. Assault while on school property;
4. 6. Unlawful endangerment of another;
5. 7. First or second degree assault of a law

enforcement officer;

1. 8. Tampering with a judicial officer;
2. 9. Kidnapping;
3. 10. Felonious restraint;
4. 11. False imprisonment;
5. 12. Interference with custody;
6. 13. Parental kidnapping;
7. 14. Child abduction;
8. 15. Elder abuse in the first degree or the

second degree;

1. 16. Harassment;
2. 17. Stalking;
3. 18. Forcible rape;
4. 19. First or second degree statutory

rape;

1. 20. Sexual assault;
2. 21. Forcible sodomy;
3. 22. First or second degree statutory

sodomy;

1. 23. First or second degree child

molestation;

1. 24. Deviate sexual assault;
2. 25. First degree sexual misconduct;
3. 26. Sexual abuse;
4. 27. Endangering the welfare of a child;
5. 28. Abuse of a child;
6. 29. Robbery in the first degree or sec-

ond degree;

1. 30. Arson in the first or second degree;
2. 31. First or second degree pharmacy

robbery;

1. 32. Incest;
2. 33. Causing catastrophe;
3. 34. First degree burglary;
4. 35. Felony count of invasion of privacy;
5. 36. Failure to report abuse and neglect

to the Department of Social Services as required under subsection 3 of section 198.070, RSMo; or

1. 37. Any equivalent felony offense.

1. (8) Any person disqualified from employment under this rule may request an exception from the DMH Exceptions Committee in accordance with 9 CSR 10-5.210 Exceptions Committee Procedures.

   1. (A) The right to request an exception under this subsection shall not apply to persons who are disqualified due to being listed on the employee disqualification registry of the Department of Social Services or Department of Health and Senior Services, nor does it apply to persons who are disqualified due to any of the following crimes:

      1. 1. First or second degree murder;
      2. 2. First or second degree statutory rape;
      3. 3. Sexual assault;
      4. 4. Forcible sodomy;
      5. 5. First or second degree statutory

sodomy;

1. 6. First or second degree child molesta-

tion;

1. 7. Deviate sexual assault;
2. 8. Sexual misconduct involving a child;
3. 9. First degree sexual misconduct;
4. 10. Sexual abuse;
5. 11. Incest;
6. 12. Causing catastrophe;
7. 13. Abuse of a child;
8. 14. First degree pharmacy robbery; or
9. 15. Forcible rape.

1. (9) For the purposes of this rule, a verdict of not guilty by reason of insanity (NGRI) is not per se disqualifying. A suspended imposition of sentence (SIS) or suspended execution of sentence (SES) is disqualifying.

2. (10) A provider shall not hire any person who has committed a disqualifying crime as identified in section (7) of this rule, unless the person has received an exception from the department. However, the provider retains the discretionary authority to deny employment to persons who—

   1. (A) Have committed crimes not identified as disqualifying;
   2. (B) Have received an exception from the Exceptions Committee; or
   3. (C) Have received a verdict of Not Guilty by Reason of Insanity.

AUTHORITY: sections 630.170 and 660.317, RSMo Supp. 2003 and 630.655 and 630.710, RSMo 2000.* Emergency rule filed Aug. 15, 1997, effective Aug. 28, 1997, expired Feb. 26, 1998. Original rule filed Aug. 15, 1997, effective March 30, 1998. Amended: Filed Oct. 29, 1998, effective May 30, 1999. Amended: Filed Nov. 3, 2003, effective April 30, 2004.

*Original authority: 630.170, RSMo 1980, amended 1982, 1996, 1998, 2001, 2003; 630.655, RSMo 1980; 630.710, RSMo 1980, amended 1996, 1998, and 660.317, RSMo 1996, amended 1997, 1998, 2003, 2003.