Tennessee caregiver background checks: the criminal check and two registries

The criminal background check

Two parts of 0940-05-38-.07 work together. Each personnel file holds "Evidence of a criminal background check, as required by T.C.A. § 33-2-1202." (0940-05-38-.07(1)(c)), and your written personnel policy sets the timing: within 10 days of employment, or within 10 days of a change of responsibilities that includes direct contact with or direct responsibility for clients (.07(2)(c)).

Results before the first visit

TDMHSAS summarises the statute this way: "The background check shall be completed before allowing the person to have any direct contact with or direct responsibility for service recipients." (PSSA slide 11). And it explains what it expects: "TDMHSAS has the interpretation that the background results shall be back and in the possession of the employer prior to employee direct contact with, or direct responsibility for, service recipients." (slide 34).

That leaves room to hire first. TDMHSAS says "Agencies should not be cited for having the check done after employment, if no direct contact with or direct responsibility for, service recipients has yet to commence." (slide 34). So a new worker can sign the paperwork and do classroom training while the check runs, but cannot visit a client, be alone with one, or take responsibility for one until the results are in your hands.

What "submit to" means. The rule says the worker shall submit to a check within 10 days. By our reading that means the check is started (fingerprints taken, or the company check ordered) within 10 days, and TDMHSAS’s reading then keeps the worker away from clients until the results arrive. TDMHSAS has not said this in writing, so it is on our list of questions for TDMHSAS.

We could not save the statute itself, T.C.A. 33-2-1202, so this page quotes TDMHSAS’s summary of it. Ask TDMHSAS or a Tennessee lawyer before relying on anything beyond that summary.

The Abuse Registry and the Sex Offender Registry

Under your personnel policy, every worker’s status on the Abuse Registry "shall be checked annually and prior to direct contact with service recipients", and "No employee or volunteer who is listed on the Abuse Registry may be hired or otherwise permitted to provider services" (0940-05-38-.07(2)(d)). The same goes for the sex offender registry: "evidence of the status of every personal support services worker on the Tennessee Sexual Offender Registry shall be checked annually and prior to direct contact with service recipients" (.07(2)(e)), and "No individual or volunteer who is listed on the state’s sexual offender registry may be hired or otherwise permitted to provide services" (.07(1)(e)).

The Abuse Registry is now the Health Facilities Commission’s

The rule says the registry is "maintained by the Department of Health". The Tennessee abuse registry (named in the rule as the Department of Health’s) is now maintained by the Health Facilities Commission, which runs the online search. (HFC, Abuse Registry). The registry rules were "Transferred from chapter 1200-08-38 pursuant to Public Chapter 1119 of 2022 effective July 1, 2022" (0720-39, history), after the PSSA rules were last rewritten in 2016 (0940-05-38, history). By our reading, a search of the Commission’s registry meets the rule; confirming that is on our list of questions for TDMHSAS.

• Where to search. The registry search is at internet.health.tn.gov/AbuseRegistry; questions go to HFC.AbuseRegistry@tn.gov or 1-800-778-4504. (HFC, Abuse Registry)
• What it is for. The Commission says the registry’s purpose "is to notify the public of those individuals who have been determined to have performed such acts against a vulnerable individual in the State of Tennessee" (HFC, Abuse Registry). It covers people harmed while receiving services at home from an agency licensed or regulated by a state agency (item 5).
• Names are added after due process. A state agency that finds someone committed abuse, neglect, misappropriation or exploitation "shall refer the individual to the Commission for placement on the Registry within ninety (90) calendar days of the completion of due process" (0720-39-.04(2)). By our reading, an investigation still under way will not show, which is one reason the search is repeated every year.
• Names can come off. "A petitioner seeking removal from the Registry must request removal in writing." The referring agency may recommend removal if the placement was an error or an advisory group finds it clearly warranted (0720-39-.06).

The Sex Offender Registry

The Tennessee Sex Offender Registry is run by the Tennessee Bureau of Investigation at sor.tbi.tn.gov. (TBI). The rule says "Tennessee Sexual Offender Registry" for the yearly check and "the state’s sexual offender registry" for the file; by our reading both mean the same TBI registry.

What counts as evidence

The rule asks for evidence of each check but does not say what form it takes, and TDMHSAS has not published one. CareRulebook’s manual files a dated printout or screenshot of each search showing the name searched, the date and the result, including "no records found", initialed by the person who searched. That is the manual’s practice; what evidence TDMHSAS accepts is on our list of questions for TDMHSAS.

References and the five-year work history

Each personnel file holds "The personal support service worker’s work history containing a continuous description of activities over the past five (5) years" and "Personal references from at least three (3) individuals, one of whom shall have known the personal support service worker/applicant for at least five (5) years" (0940-05-38-.07(1)(i)-(j)). TDMHSAS reads T.C.A. 33-2-1202 as requiring you to check them, before employment (PSSA slide 36):

• References. "Agency must directly communicate with at least two (2) of the three (3) required references listed." (slide 35) "Yes, relatives can qualify as personal references." (slide 39)
• Employers. "Agency is required to communicate with the most recent employer. There is no requirement to check with ALL places listed, only employers where the applicant has worked for more than 6 months." (slide 35)
• Gaps. "Agency should require an explanation for gaps in employment within that timeframe, if appropriate." (slide 35)
• Attempts count. "Verifying employment is no different than verifying references. Again, documenting your attempted phone call, fax, email, etc. is sufficient." (slide 35). A note of the call and the voicemail left, or a printed copy of the email sent, is enough.
• The current employer. Applicants sometimes ask you not to call their current job until you have hired them. TDMHSAS’s answer: "We fully understand the concern here; however, there is no real flexibility in the statute." (slide 36). Our suggestion: tell applicants at the start that you will contact their most recent employer before any offer is final, so no one is surprised.

Each file also holds a signed and dated job description, proof the worker meets its requirements, their date of birth, annual performance evaluations and the worker notice (0940-05-38-.07(1)). CareRulebook’s manual has a personnel file checklist in that order (Policy 4.4).

Deciding about a criminal record

Chapter 0940-05-38 names two bars: no one listed on the Abuse Registry and no one listed on the Sex Offender Registry may be hired or permitted to provide services (0940-05-38-.07(1)(d)-(e)). It lists no other offenses, and it sets no factors for weighing a conviction. We could not save T.C.A. 33-2-1202, so we cannot say whether the statute lists any; that is on our list of questions for a Tennessee lawyer.

CareRulebook’s manual does not invent a list. It has the individual responsible for the agency review every result personally and weigh the nature and seriousness of the offense, how it relates to the job, how long ago it was, and what the person says about it, and, for a pending charge, whether to wait for the outcome before any client contact. Before deciding not to hire, the person is told which record is the concern and given a chance to explain. These are the manual’s own steps (Policy 4.3), not TDMHSAS’s. Our suggestion: take employment law advice before withdrawing an offer because of a record.

The two-year re-check TDMHSAS will not enforce

The rule’s wording is "every two (2) years or within ten (10) days of employment or within ten (10) days of a change of responsibilities" (0940-05-38-.07(2)(c)). TDMHSAS’s note on it: "Because of the verbiage of this rule concerning every 2 years, Licensure will not be enforcing this part of the rule." (PSSA slide 8).

• Still required: the check within 10 days of employment, the check within 10 days of a move into client work, and both registry searches before contact and every year.
• Not enforced: a fixed criminal re-check every two years.
• Your choice: CareRulebook’s manual lets you choose. If you choose to re-check every two years, the policy says so, and TDMHSAS can then expect you to follow it. If you do not, the policy explains why and says you will update it if TDMHSAS’s position changes.

The note appears in TDMHSAS’s 2025 PSSA slides. We have not found it anywhere else in writing; whether it still holds is on our list of questions for TDMHSAS.

Records, and what TDMHSAS asks for in an investigation

• In each personnel file. Evidence of the criminal check and of both registry checks (0940-05-38-.07(1)(c)-(e)). TDMHSAS may review and copy all records it needs to check compliance, with or without notice (0940-05-02-.13).
• After an allegation against staff. TDMHSAS’s Reportable Incident Form asks: "(If allegation against staff, submit background check, abuse registry check, and sexual abuse registry check.)" (MH-5375).
• After a theft. TDMHSAS asks you to "provide a copy of the criminal background checks that also include the abuse and sex registries conducted at the time of hire" (TDMHSAS, PSSA reporting documentation). A background check log with the hire-date results is the quickest way to answer. How inspections and investigations run is on Tennessee PSSA inspections. More on reporting on the hub guide.
• How long to keep them. The PSSA rules set no retention period for personnel files. TDMHSAS says licensed providers keep records for 10 years, quoting a statute about records of services (PSSA slide 30); whether that reaches personnel files is not stated. CareRulebook’s manual keeps each personnel file for at least a year after the person leaves, or for 10 years if you include Recommended practice.

The owner’s own check, through TDMHSAS

The checks above are your agency’s checks of its workers. Separately, TDMHSAS checks the people running the agency when you apply. For the person with overall responsibility (and any other applicants listed), TDMHSAS needs proof of citizenship or legal immigration, a Background Information Check form, a Non-Criminal Justice Privacy Rights Statement and a TBI fingerprint check (or FBI fingerprints or a licensed private investigator check covering current and previous states). The individual pays for it. (MH-4385, item 7) The application asks for three references who can vouch for the responsible person’s character and ability; they may not be related by marriage, blood or a shared business venture. (item 9)

When the chief executive officer or executive director changes later, the Change of Status form reports it to TDMHSAS, with background forms and fingerprinting (MH-4454). If the owner or the individual responsible also visits clients, CareRulebook’s manual gives them the worker checks as well, like anyone else who gives services. The application itself is covered in the Tennessee license application, and the roles in who runs a Tennessee PSSA.