PURPOSE: This rule establishes standards for obtaining a criminal record review for certain staff 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 or, although not certified or licensed, are funded by the department. Specifically this category includes:

      1. 1. Agencies certified by the Department

of Mental Health as community psychiatric rehabilitation programs (CPRP);

1. 2. Agencies certified by the Department

of Mental Health 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 the Department of Mental Health, have a license or certification from another state agency. Specifically, this category includes facilities licensed by the Division of Aging, the Division of Family Services and the Department of Health; 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),

1. (10) and (11) regarding disqualifying crimes.

2. (2) This rule applies to—

   1. (A) Staff;
   2. (B) Volunteers who are recruited as part of an agency’s formal volunteer program and 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 providers household who have contact with residents or clients, except for minor children.
3. (3) Each residential facility, day program or specialized service defined under Category I above shall make an inquiry with the Department of Social Services to determine whether any new employee or volunteer having contact with residents or clients is listed on the Division of Aging’s employment disqualification list.
4. (4) Each residential facility, day program or specialized service defined under Category I above shall conduct a criminal background check with the state highway patrol for new staff and volunteers who have contact with patients, residents or clients. 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.
5. (5) The criminal background check and inquiry with the Department of Social Services shall be initiated not later than two
6. (2) working days of hiring the employee or selecting the volunteer.

7. (6) In accordance with section 660.317, RSMo, 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 Division of Aging.

8. (7) 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.

9. (8) Convictions which under sections 630.170 and 660.317, RSMo exclude a person from service are the following:

   1. (A) A person who has been convicted of, found guilty of, pled guilty to or nolo contendere to any of the following crimes shall be disqualified from holding any position in the agency:

      1. 1. Physical abuse or Class I Neglect of a

patient, resident or client; or

1. 2. Furnishing unfit food to patients, res-

idents or clients; and

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. These crimes are not disqualifying unless they are felonies, except for failure to report abuse and neglect to the Division of Aging, 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. (9) Any person disqualified from employment under this rule may appeal the disqualification to the department’s Exceptions Committee.

   1. (A) The request shall be written and may not be made more than one (1) time every twelve (12) months.

   2. (B) The request may be granted if a clear showing has been made that—

      1. 1. The person will not commit any addi-

tional acts for which the person had originally been disqualified; and

1. 2. The person will not commit any other

acts which would be harmful to a patient, resident or client of a facility, program or service.

1. (C) The Exceptions Committee may grant the appeal subject to conditions and failure to comply with such conditions may result in the person being again disqualified.
2. (D) The decision of the Exceptions Committee shall not be subject to appeal.

3. (E) The right to receive an exception under this subsection shall not apply to persons convicted of 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. First or second degree endangering

the welfare of a child;

1. 13. Abuse of a child;
2. 14. First or second degree pharmacy

robbery;

1. 15. First degree burglary; or
2. 16. Forcible rape.

1. (10) 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. (11) A provider shall not hire any person who has committed a disqualifying crime as identified in section (8) 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, 630.710 and 660.317, RSMo Supp. 1997 and 630.655, RSMo 1994.* 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. *Original authority: 630.170, RSMo 1980, amended 1982, 1996, 1998; 630.655, RSMo 1980; 660.317, RSMo 1996, amended 1997, 1998; and 630.710, RSMo 1980, amended 1996.