660.315. Employee disqualification list, notification of placement, contents--challenge of allegation, procedure--hearing, procedure--appeal--removal of name from list--list provided to whom--prohibit
Employee disqualification list, notification of placement,contents--challenge of allegation, procedure--hearing,procedure--appeal--removal of name from list--list provided towhom--prohibition of employment.
660.315. 1. After an investigation and a determination has been madeto place a person's name on the employee disqualification list, that personshall be notified in writing mailed to his or her last known address that:
(1) An allegation has been made against the person, the substance ofthe allegation and that an investigation has been conducted which tends tosubstantiate the allegation;
(2) The person's name will be included in the employeedisqualification list of the department;
(3) The consequences of being so listed including the length of timeto be listed; and
(4) The person's rights and the procedure to challenge theallegation.
2. If no reply has been received within thirty days of mailing thenotice, the department may include the name of such person on its list.The length of time the person's name shall appear on the employeedisqualification list shall be determined by the director or the director'sdesignee, based upon the criteria contained in subsection 9 of thissection.
3. If the person so notified wishes to challenge the allegation, suchperson may file an application for a hearing with the department. Thedepartment shall grant the application within thirty days after receipt bythe department and set the matter for hearing, or the department shallnotify the applicant that, after review, the allegation has been held to beunfounded and the applicant's name will not be listed.
4. If a person's name is included on the employee disqualificationlist without the department providing notice as required under subsection 1of this section, such person may file a request with the department forremoval of the name or for a hearing. Within thirty days after receipt ofthe request, the department shall either remove the name from the list orgrant a hearing and set a date therefor.
5. Any hearing shall be conducted in the county of the person'sresidence by the director of the department or the director's designee.The provisions of chapter 536, RSMo, for a contested case except thoseprovisions or amendments which are in conflict with this section shallapply to and govern the proceedings contained in this section and therights and duties of the parties involved. The person appealing such anaction shall be entitled to present evidence, pursuant to the provisions ofchapter 536, RSMo, relevant to the allegations.
6. Upon the record made at the hearing, the director of thedepartment or the director's designee shall determine all questionspresented and shall determine whether the person shall be listed on theemployee disqualification list. The director of the department or thedirector's designee shall clearly state the reasons for his or her decisionand shall include a statement of findings of fact and conclusions of lawpertinent to the questions in issue.
7. A person aggrieved by the decision following the hearing shall beinformed of his or her right to seek judicial review as provided underchapter 536, RSMo. If the person fails to appeal the director's findings,those findings shall constitute a final determination that the person shallbe placed on the employee disqualification list.
8. A decision by the director shall be inadmissible in any civilaction brought against a facility or the in-home services provider agencyand arising out of the facts and circumstances which brought about theemployment disqualification proceeding, unless the civil action is broughtagainst the facility or the in-home services provider agency by thedepartment of health and senior services or one of its divisions.
9. The length of time the person's name shall appear on the employeedisqualification list shall be determined by the director of the departmentof health and senior services or the director's designee, based upon thefollowing:
(1) Whether the person acted recklessly or knowingly, as defined inchapter 562, RSMo;
(2) The degree of the physical, sexual, or emotional injury or harm;or the degree of the imminent danger to the health, safety or welfare of aresident or in-home services client;
(3) The degree of misappropriation of the property or funds, orfalsification of any documents for service delivery of an in-home servicesclient;
(4) Whether the person has previously been listed on the employeedisqualification list;
(5) Any mitigating circumstances;
(6) Any aggravating circumstances; and
(7) Whether alternative sanctions resulting in conditions ofcontinued employment are appropriate in lieu of placing a person's name onthe employee disqualification list. Such conditions of employment mayinclude, but are not limited to, additional training and employeecounseling. Conditional employment shall terminate upon the expiration ofthe designated length of time and the person's submitting documentationwhich fulfills the department of health and senior services' requirements.
10. The removal of any person's name from the list under this sectionshall not prevent the director from keeping records of all acts finallydetermined to have occurred under this section.
11. The department shall provide the list maintained pursuant to thissection to other state departments upon request and to any person,corporation, organization, or association who:
(1) Is licensed as an operator under chapter 198, RSMo;
(2) Provides in-home services under contract with the department;
(3) Employs nurses and nursing assistants for temporary orintermittent placement in health care facilities;
(4) Is approved by the department to issue certificates for nursingassistants training;
(5) Is an entity licensed under chapter 197, RSMo; or
(6) Is a recognized school of nursing, medicine, or other healthprofession for the purpose of determining whether students scheduled toparticipate in clinical rotations with entities described in subdivision(1), (2), or (5) of this subsection are included in the employeedisqualification list.
The department shall inform any person listed above who inquires of thedepartment whether or not a particular name is on the list. The departmentmay require that the request be made in writing.
12. No person, corporation, organization, or association who receivedthe employee disqualification list under subdivisions (1) to (5) ofsubsection 11 of this section shall knowingly employ any person who is onthe employee disqualification list. Any person, corporation, organization,or association who received the employee disqualification list undersubdivisions (1) to (5) of subsection 11 of this section, or any personresponsible for providing health care service, who declines to employ orterminates a person whose name is listed in this section shall be immunefrom suit by that person or anyone else acting for or in behalf of thatperson for the failure to employ or for the termination of the person whosename is listed on the employee disqualification list.
13. Any employer who is required to discharge an employee because theemployee was placed on a disqualification list maintained by the departmentof health and senior services after the date of hire shall not be chargedfor unemployment insurance benefits based on wages paid to the employee forwork prior to the date of discharge, pursuant to section 288.100, RSMo.
14. Any person who has been listed on the employee disqualificationlist may request that the director remove his or her name from the employeedisqualification list. The request shall be written and may not be mademore than once every twelve months. The request will be granted by thedirector upon a clear showing, by written submission only, that the personwill not commit additional acts of abuse, neglect, misappropriation of theproperty or funds, or the falsification of any documents of servicedelivery to an in-home services client. The director may make conditionalthe removal of a person's name from the list on any terms that the directordeems appropriate, and failure to comply with such terms may result in theperson's name being relisted. The director's determination of whether toremove the person's name from the list is not subject to appeal.
(L. 1992 S.B. 573 & 634, A.L. 2003 S.B. 556 & 311, A.L. 2007 S.B. 272)