Do South Carolina disability-services providers have to run fingerprint background checks on their direct-care staff?

Official title

Opinion addressing the requirement for background checks pursuant to Section 44-7-2910 of the South Carolina Code to the Department of Disabilities and Special Needs employees and contractors.

Requester

Requested by Ms. Constance Holloway, Director, South Carolina Department of Disabilities and Special Needs.

Plain-English summary

The Director of the South Carolina Department of Disabilities and Special Needs (DDSN) asked two questions: are the various DDSN programs covered by the state's background-check law for direct caregivers, and if so, does that law require fingerprint checks or is a name search enough?

On the first question, the Attorney General concluded that nothing in the statute exempts DDSN. Section 44-7-2910 actually names DDSN-operated residential programs in its list of "direct care entities," so the AG presumed the law applies. Whether each specific program type (Regional Centers, Adult Activity Centers, Community Training Homes, Supervised Living Programs, and Intermediate Care Facilities) meets the statutory definition is a fact question a court would have to decide, but the AG walked through each and found each has characteristics that could qualify it. If a program is a direct care entity, then it (and its contracted providers) must run a criminal record check on direct caregivers before hiring or contracting with them.

On the second question, the AG concluded the check must be fingerprint-based. Section 44-7-2920 requires the applicant to submit a complete set of fingerprints to the State Law Enforcement Division (SLED) to facilitate a national FBI criminal records check. A name-only search does not satisfy the statute.

What this means for you

DDSN and its contracted providers

The opinion reads § 44-7-2910 as applying to DDSN programs unless a court says otherwise. For any program that functions as a direct care entity, the provider must run a criminal record check on each direct caregiver before employment or contract begins. That obligation runs to the contracted provider, not just to DDSN itself.

Direct caregivers and job applicants in disability services

If you apply for a direct-care role with one of these programs, expect to be fingerprinted, not just name-checked. The opinion reads the statute to require submitting a full set of fingerprints through SLED for a national FBI check. The check does not have to be repeated as long as you stay employed or under contract, but a gap of a year or more triggers a new check before you resume.

Operators unsure whether their program is covered

The AG would not declare any specific program type in or out, calling that a fact question for a court. The opinion does lay out the test for each: an Adult Activity Center turns on whether it provides community-based care for under 24 hours a day to prevent institutionalization and operates 4 to 14 hours daily; a Community Training Home turns on whether it furnishes "home health services" as the statute defines them. Operators in doubt should compare their program against the specific definitions the opinion quotes rather than assume they are exempt.

Common questions

Q: Does this law apply to programs run by DDSN, or only to private nursing homes?
A: Both. The list of "direct care entities" in § 44-7-2910(B)(1) expressly includes residential programs operated or contracted for by DDSN, along with nursing homes, adult daycare facilities, home health agencies, community residential care facilities, hospice programs, and in-home care providers.

Q: Is a name-based background check enough?
A: No. The AG concluded § 44-7-2920 requires the applicant to submit fingerprints to SLED to facilitate a national FBI check, so a fingerprint-based check is what satisfies the statute.

Q: Who pays for the FBI fingerprint review?
A: The statute says the FBI fee, if any, is paid by the individual direct caregiver or the direct care entity.

Q: Does the check have to be repeated every year?
A: Not while the person stays employed by or under contract with a direct care entity. But if someone is not employed or under contract for a year or longer, the check must be repeated before they resume.

Q: Did the AG decide whether a specific program, like an Adult Activity Center, is covered?
A: No. The AG said that is a question of fact outside this Office's authority and that a court would have to decide it. The opinion only explains the test and notes that each program type has features that could bring it within the definition.

Background and statutory framework

Section 44-7-2910 sits in the South Carolina Code's article on criminal record checks for direct caregivers. Subsection (A) bars a direct care entity from employing or contracting with a direct caregiver without first running a criminal record check, and bars employment agencies from supplying staff to such entities without the same check. Subsection (B)(1) defines "direct care entity" by enumerated category, and that list references residential programs operated or contracted for operation by DDSN or the Department of Mental Health.

The companion provision, § 44-7-2920, spells out the mechanics: the check is run by SLED or a qualified private entity using SLED or FBI records, and the applicant must submit a full set of fingerprints "to facilitate a national criminal records check." That fingerprint requirement is the basis for the AG's conclusion that a name search alone is not enough.

The AG repeatedly flagged that this Office cannot resolve questions of fact, citing a prior 2023 opinion (Op. Att'y Gen., 2023 WL 6550940 (S.C.A.G. Oct. 3, 2023)). So the opinion stops short of declaring any specific DDSN program in or out and instead supplies the definitions a court would apply.

Citations and references

Statutes:

• S.C. Code Ann. § 44-7-2910 (criminal record checks required before a direct care entity employs or contracts with a direct caregiver)
• S.C. Code Ann. § 44-7-2920 (SLED/FBI fingerprint-based national records check; fee allocation; one-year re-check rule)
• S.C. Code Ann. § 44-7-130 (definitions, including "daycare facility for adults")
• S.C. Code Ann. § 44-69-20 (home health agency definition)
• S.C. Code Ann. § 44-66-20 (home health services definition)
• S.C. Code Ann. § 44-20-360 (DDSN regional centers)

Earlier AG opinion referenced:

• Op. Att'y Gen., 2023 WL 6550940 (S.C.A.G. Oct. 3, 2023) (this Office cannot determine questions of fact)

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/opinion-addressing-the-requirement-for-background-checks-pursuant-to-section-44-7-2910-of-the-south-carolina-code-to-the-department-of-disabilities-and-special-needs-employees-and-contractors/
• Original PDF: https://www.scag.gov/media/20kiflsy/03468033.pdf

Original opinion text

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Alan Wilson
Attorney General

December 21, 2023
Constance Holloway
Director

South Carolina Department of Disabilities and Special Needs
3440 Harden Street Extension
Columbia, South Carolina 29203
Dear Ms. Holloway:

We received your request for an opinion on behalf of the South Carolina Department of Disabilities
and Special Needs (“DDSN”) concerning employee background checks required pursuant to
section 44-7-2910 of the South Carolina Code. Specifically, you ask: “first, whether certain DDSN
services are subject to the governing statute, and second, under what circumstances are fingerprint
based background checks required.”
Law/Analysis

A. Are Regional Centers, Adult Activity Centers, Community Training Homes (“CTHs”),
Supervised Living Programs-II (“SLP-IIs”), and Intermediate Care Facilities (“ICFs”)
direct care entities under section 44-7-2910 of the South Carolina Code and if so, must
DDSN therefore require its contracted providers to have their employees undergo criminal
background checks?

Section 44-7-2910 of the South Carolina Code (2018) requires criminal record checks for direct
caregivers and states as follows:

(A)( 1 ) A direct care entity employing or contracting with a direct caregiver shall
conduct a criminal record check as provided in this section prior to employing
or contracting with the direct caregiver. A direct care entity may consider all

information revealed by a criminal record check as a factor in evaluating a direct
caregiver’s application to be employed by or contract with the entity.
(2) An employment agency may not furnish employees to a direct care
entity without conducting a criminal record check on each employee.
An employee who works in multiple direct care settings must have a

criminal record check on file at the location of the employment agency,

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Constance Holloway
Page 2
December 21, 2023

the home office of his employer, or at the individual's primary place of
employment.

S.C. Code Ann. § 44-7-29 10(A). Section 44-7-29 10(B)(1) defines “direct care entity” as:
(a) a nursing home, as defined in Section 44-7-130;
(b) a daycare facility for adults, as defined in Section 44-7-130;
(c) a home health agency, as defined in Section 44-69-20;
(d) a community residential care facility, as defined in Section 44-7-130;
(e) a residential program operated or contracted for operation by the Department
of Mental Health or the Department of Disabilities and Special Needs;
(f) residential treatment facilities for children and adolescents;
(g) hospice programs.
(h) an in-home care provider, as defined in Section 44-70-20(3).

Initially, we note the Legislature does not explicitly exempt DDSN entities from this provision.
To the contrary, the Legislature references DDSN operated facilities in section 44-7-29 10(B)(1).
Therefore, we presume section 44-7-2910 is applicable to DDSN entities assuming they are “direct
care entities.” In your letter, you ask whether Regional Centers, Adult Activity Centers, CTHs,
SLP-IIs, SLP-Is, and Intermediate Care Facilities fall within the definition of “direct care entities”
for purposes of section 44-7-2910. Whether or not these particular entities are direct care entities
pursuant to this definition involves questions of fact. As we stated in numerous prior opinions,
this Office does not have the jurisdiction of a court to determine questions of fact. Op. Att’y Gen.,
2023 WL 6550940 (S.C.A.G. Oct. 3, 2023). Nonetheless, we will try to provide guidance based
on the information you provided to us.

First, in regard to Regional Centers, it is our understanding that DDSN operates four Regional
Centers. S.C. Code Ann. § 44-20-360 (2018). According to DDSN’s website, individuals with
disabilities live at these centers and are cared for by DDSN staff. (DDSN website, available at
Section 44-7-29 10(B)(e) includes residential programs
httDs://ddsn.sc.gov/ddsn-divisions).
Therefore, we believe these regional centers are likely
entities.”
care
operated by DDSN as “direct
direct care entities for purposes of this statute.
Next, you inquire about Adult Activity Centers, which you describe as “goal-oriented programs of
‘developmental, prevocational services designed to develop, maintain, increase or maximize an
individual’s functioning in activities of daily living, physical growth, emotional stability,
socialization, communication and vocational skills.’” (citing S.C. Code Reg. § 88-405(A)).
Looking at the types of entities included as direct care entities under section 44-7-29 10(B), we
note this list includes day care facilities as defined in section 44-7-130 of the South Carolina Code
(Supp. 2022). Section 44-7-130(9) defines “daycare facility for adults” as
a facility for adults eighteen years or older that:

Constance Holloway
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December 21, 2023

(a) offers in a group setting a program of individual and group activities
and therapies;

(b) is directed toward providing community-based care for those in need
of a supportive setting for less than twenty-four hours a day, in order to
prevent unnecessary institutionalization; and
(c) provides a minimum of four and a maximum of fourteen hours of
operation a day.

We do not have all the facts to determine if an Adult Activity Center meets this definition.
However, as you describe them, Adult Activity Centers offer individual and group activities and
therapies. But you would need to consider whether these facilities provide community-based care
for less than twenty-four hours a day to prevent unnecessary institutionalization and whether they
operate between four and fourteen hours a day to determine if they are an adult daycare facility
pursuant to section 44-7-29 10(B)(1)(b) making them a direct care entity for purposes of section
44-7-29 10(A)(1).

As for CTHs, you described them as allowing individuals “to ‘live in a homelike environment
under the supervision of [a] qualified and trained staff of caregivers comprised either of ‘trained
private citizens who provide care in their own homes’ or ‘service provider employees caring for
individuals in a home operated by the provider agency.’” (quoting the DDSN webpage, available

at https://ddsn.sc.gov/services/overview-ddsn-services). Section 44-7-29 1 0(B)( 1 )(c) includes “a
home health agency, as defined in Section 44-69-20” as a “direct care entity.” Section 44-69-20(4)
of the South Carolina Code (2018) defines “home health agency” as a “public, nonprofit, or
proprietary organization, whether owned or operated by one or more persons or legal entities,
which furnishes or offers to furnish home health services.” Home health services are defined by
section 44-66-20(5) of the South Carolina Code (Supp. 2022) as follows:
(5) “Home health services” shall mean those items and services furnished to an
individual by a home health agency, or by others under arrangement with the
home health agency, on a visiting basis, and except for subsection “e” below,
in a place of temporary or permanent residence used as the individual’s home
as follows:

(a) Part-time or intermittent skilled nursing care as ordered by a
physician, an APRN pursuant to Section 40-33-34(D)(2)(h), or a PA
pursuant to Section 40-47-93 5(B)(8) and as provided by or under the
supervision of a registered nurse and at least one other service listed
below;

(b) Physical, occupational or speech therapy;

Constance Holloway
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December 21, 2023

(c) Medical social services, home health aide services and other
therapeutic services;
(d) Medical supplies and the use of medical appliances;
(e) Any of the foregoing items and services which are provided on an

outpatient basis under arrangements made by the home health agency
with a hospital, nursing care facility, or rehabilitation center and the
furnishing of which involves the use of equipment of such a nature that
the items and services cannot be readily made available to the individual
in his home, or which are furnished at such facility while the patient is
there to receive such items or service, but not including transportation

of the individual in connection with any such items or services.
We are not aware of exactly what types of services either the private citizens or the service provider

employees are offering but should these services amount to home health services as defined under
section 44-66-20(5), CTHs may be considered “home health agencies” under section 44-69-20(4)
and therefore direct care entities under section 44-7-2910. In addition, section 44-7-29 10(B)(1)(e)
includes “a residential program operated or contracted for operation by the Department of Mental

Health of the Department of Disabilities and Special Needs” in the definition of a “direct care
entity.” Therefore, a court could find the care received by individuals from services provided by
employees in a home operated a provider agency fall within the section 44-7-29 10(B)(1)(e)
definition of a “direct care entity.”
In regard to SLP-IIs, you state they “are typically offered in an apartment setting that has staff
available on-site or in a location from which they may get to the site within fifteen minutes of
being called, twenty-four hours daily.” You informed us that SLP-Is “are offered an.apartment or

house setting and staff is available twenty-four hours daily.” You describe ICFs as “residences for
individuals ‘needing maximum support for their high levels of need,’ and these facilities include
‘24-hour care, supervision, training, recreation, and other activities’ in a structured environment.”
(quoting

the

DDSN

webpage,

available

at

https://ddsn.sc.gov/ddsn-divisions/intellectual-

disability-and-related-disabilities/residential-habilitation-services). Again, SLP-IIs, SLP-Is, and
ICFs may fall under section 44-7-29 10(B)(l)(e)’s definition of a direct care entity because they
appear to be a residential program operated by DDSN, but a court must consider all of the facts
before making such a determination.
In addition to inquiring as to the status of these entities as direct care entities, you also ask if they
are direct care entities, whether DDSN must require the employees of its contract providers to
undergo background checks. Section 44-7-29 10(A)(1), as cited above, specifically requires direct

care entities employing or contracting with a direct caregiver to conduct criminal records checks
prior to employing the employee or contractor. Therefore, if a court were to find any of these
entities are direct care entities, we believe section 44-7-29 10(A)(1) requires that entity to

Constance Holloway
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December 21, 2023

conduct a criminal record check for any direct caregivers (as defined in section 44-7-29 10(B)(2))
it employs or contracts with.
B. Are fingerprint-based background checks required for both state background checks and
federal background checks or is a name-based search for state background checks sufficient
to meet the state requirements?

Section 44-7-29 10(A)(1) requires a “criminal background check” of direct caregivers employed

by or contracting with a direct care entity. Section 44-7-29 10(C)(1) requires the direct care entity
to conduct a state criminal record check if the direct care entity can verify the applicant has resided
in South Carolina during the twelve months preceding the date of the employment application. If
residency cannot be verified, the direct care entity is required to “conduct a state criminal record
check on the applicant prior to employment and shall commence a federal criminal record check
after employment” or if the direct care entity can verify residency in another state for the preceding
twelve months, it can conduct “only a state criminal record check in the applicant’s resident state
or jurisdiction where the applicant previously resided.”

S.C. Code Ann. § 44-7-29 10(C)(2).

Section 44-7-2910 does not express what is involved in conducting a criminal record check at
either the state or federal level and whether it must include a fingerprint-based background check
or if a name-based search is sufficient. However, section 44-7-2920 of the South Carolina Code
(2018), contained in the same article as section 44-7-2910, states:
Criminal record checks required pursuant to this article must be conducted by

the State Law Enforcement Division or by a private business, organization, or
association which conducts background checks if that entity utilizes current
criminal records obtained from the State Law Enforcement Division or the

Federal Bureau of Investigation to determine any criminal record. An applicant
shall submit with the application one complete set of the applicant’s fingerprints
on forms specified or furnished by the State Law Enforcement Division.
Fingerprint cards submitted to the State Law Enforcement Division pursuant to

this section must be used to facilitate a national criminal records check, as
required by this section. The criminal record check is not required to be repeated
as long as the person remains employed by or continues to contract with a direct
care entity; however, if a person is not employed by or is not under contract for
one year or longer with a direct care entity, the criminal record check must be
repeated before resuming employment or contracting with a direct care entity.
The fee charged by the Federal Bureau of Investigation, if any, for the
fingerprint review must be paid by the individual direct caregiver or the direct
care entity.
S.C. Code Ann. § 44-7-2920 (emphasis added). According to this provision, direct caregivers
employed by or contracted with direct care entities are required to submit a set of fingerprints and
the direct care entity is required to submit those fingerprints to the State Law Enforcement Division
or another authorized entity to facilitate a national criminal records check. As such, we believe a

Constance Holloway
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December 21, 2023

fingerprint-based background check is required to meet the statutory requirements for background
checks pursuant to section 44-7-2910.
Conclusion

Section 44-7-2910 of the South Carolina Code requires direct care entities to conduct criminal
record checks of direct caregivers prior to employing or contracting with them. We do not find

evidence of the Legislature’s intent to exclude DDSN entities from this provision and therefore we
believe it could apply to DDSN entities. However, whether certain DDSN entities including
Regional Centers, Adult Activity Centers, CTHs, SLP-IIs, SLP-Is, and ICFs qualify as direct care
entities for purposes of this provision is a factual question that ultimately must be determined by

a court. Nevertheless, we believe each of these entities has some characteristics that may qualify
them as direct care entities under the definition provided in section 44-7-29 1 0(B)( 1 ). Furthermore,
if a court were to determine these entities are direct care entities under section 44-7-2910, then we

believe DDSN contracted providers must conduct background checks of employees who are
considered direct caregivers under this provision. Section 44-7-2920 of the South Carolina Code
requires SLED or a qualified private business conduct the criminal record check and mandates the
applicant submit a complete set of their fingerprints “to facilitate a national criminal records check

. . . .” As such, we believe a fingerprint-based background check is required for direct caregivers
identified under section 44-7-2910.
Sincerely,

Cydney Milling
Assistant Attorney General

REVIEWED AND APPROVED BY:

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Robert D. Cook
Solicitor General