Opinion Number ( 2007 )

Dear Lieutenant Davidson:

On behalf of the DeSoto Parish Sheriff's Office, you have requested the opinion of this office. Specifically, you asked: (1) whether or not a dialysis center in the State of Louisiana is considered a health care facility; and (2) whether or not such a facility should be required to run criminal background checks on employees through an authorized agency, such as Louisiana State Police.

Health Care Facilities Dialysis is defined in La.R.S. 40:2117.1 as " . . . the process by which dissolved substances are removed from an individual's body by diffusion, osmosis, and convection (ultrafiltration) from one fluid compartment to another across a semipermeable membrane." In connection with that process, health care and medical facilities are defined under La.R.S. 40:1236.16(8), and include dialysis centers. Thus, for purposes of this issue, dialysis centers are considered health care facilities. Criminal Background Checks The only provision under Louisiana law that deals with criminal background checks of health care providers is found at La.R.S. 40:1300.52, which states the following:

A. (1) Except as otherwise provided in Subsection C of this Section, prior to any employer¹ making an offer to employ or to contract with a nonlicensed person² or any licensed ambulance personnel to provide nursing care, health-related services, medic services, or supportive assistance to any individual, the employer shall request that a criminal history and security check be conducted on the nonlicensed person or any licensed ambulance personnel pursuant to the provisions of this Section. .

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B. (1) The employer shall request in writing that the office [of state police] or authorized agency³ conduct a criminal history and security check on the nonlicensed person or any licensed ambulance personnel and shall provide the office or authorized agency with any relevant information required by the office or authorized agency to conduct the check.

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In summarization of the aforementioned statute, prospective workers who must undergo criminal background checks include employees providing nursing care, health transportation, or other health-related services who are either not licensed or who are licensed ambulance personnel.⁴ Businesses affected include nursing homes, home health agencies, ambulance and medical transportation businesses, and businesses employing direct service workers providing personal care or other services to the disabled or elderly.⁵

The statute does not, however, require that background checks be conducted on facilities such as dialysis centers, nor does the statute ever require that background checks be conducted on licensed persons, such as doctors and nurses. Even in the event that the circumstances requiring a background check are met, a covered employer may request a criminal background check from either the Department of Public Safety and Corrections or a private entity authorized by state police to conduct such checks.⁶

Given the above and foregoing, it is our opinion that:

1. Dialysis centers are considered health care facilities under Louisiana law, but

2. Dialysis centers are not required to run criminal background checks on potential employees.

We hope that this sufficiently answers your questions, but if we can be of further assistance, please do not hesitate to contact us.

Yours very truly,

CHARLES C. FOTI, JR.

ATTORNEY GENERAL

BY:__________________________

TERRI RUSSO LACY

Assistant Attorney General

TRL/trl/jy

¹ Under 40:1300.51(2), "employer" means any of the following facilities, agencies, or programs:

(a) A nursing home; (b) An intermediate care facility for people with developmental disabilities; (c) An adult residential care home; (d) An adult day care center; (e) A home health agency; (f) A hospice; (g) An ambulance service; (h) A personal care attendant services agency; (i) A respite care services agency; (j) A supervised independent living program; (k) A nonemergency, nonambulance medical transportation facility or entity; (l) A Medicaid Personal Care Services or Section 1915(c) Home and Community-based Services Waiver Program; or (m) Any other direct service worker.

² Under La.R.S. 40:1300.51(3), any person who provides for compensation nursing care or other health-related services to residents in a nursing facility, intermediate care facility for people with developmental disabilities, adult residential care facility, or adult day care center, personal care attendant services agency, respite care services agency, or supervised independent living program and who is not a licensed health provider. "Nonlicensed person" also means any person who provides such services to individuals in their own homes as an employee or contract provider of a home health agency, hospice, personal care attendant services agency, respite care services agency, or supervised independent living program. "Nonlicensed person" also means any person employed as a driver by or who contracts as a driver with a nonemergency, non-ambulance transportation facility or entity.

³ A private entity authorized by the office of state police to conduct the criminal history checks.

⁴ La. Prac. Empl. Law § 17:33, citing La.R.S. 40:1300.51(5).

⁵ Id. at La.R.S. 40:1300.51(3).

⁶ Id. at La.R.S. 40:1300.52(A)(1) and (B)(1); La. Atty. Gen. Op. No. 02-0048.