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Provisional employment and appeal rights
Provisional employment. The background-check program established by participating States must include a provision allowing a period of provisional employment of 60 days or less, pending completion of the required criminal history background check. If the employee chooses to appeal the results of the criminal history background check, the provisional employment period is extended until the completion of the appeals process. During the provisional employment period, the employee must be subject to direct on-site supervision (in accordance with procedures established by the State).
It is unclear from the statutory language whether the State must allow for provisional employment as so described or whether it is optional. In both bills, this provision begins with the words "as appropriate" - which could be interpreted as allowing the state to decide whether or not to allow for provisional employment or could be interpreted as meaning that the State must allow for provisional employment in appropriate cases.
Appeal rights. Whether or not they are required to have a provisional-employment provision in their background-check programs, participating States must have "an independent process by which a provisional employee or an employee may appeal or dispute the accuracy of the information obtained in a background check performed under the nationwide program, including the specification of criteria for appeals for direct patient access employees found to have disqualifying information which shall include consideration of the passage of time, extenuating circumstances, demonstration of rehabilitation, and relevancy of the particular disqualifying information with respect to the current employment of the individual."
Note that these appeal rights apply only to provisional employees and employees, and not to prospective employees.
Rap-back capability
"Rap back" capability described by both bills as a process whereby, if a direct patient access employee of a long-term care facility is convicted of a crime following his or her initial criminal history background and the employee's fingerprints match the prints on file with the state law enforcement department -
- That department will immediately inform the background check agency that agency will immediately inform the facility that employs the direct patient access employee of such conviction; and
- The State will provide, or will require the facility to provide, to the employee a copy of the results of his/her criminal history background check at no charge when the individual requests such a copy.
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