REPORT TITLE:
Criminal Background Check

DESCRIPTION:
Authorizes the collection of criminal history record information
for prospective employees, service providers, and subcontractors,
who work in close proximity with clients when providing medical,
mental health, or substance abuse services.  (SD1)

 
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                                                        2876
THE SENATE                              S.B. NO.           S.D. 1
TWENTIETH LEGISLATURE, 2000                                
STATE OF HAWAII                                            
                                                             
________________________________________________________________
________________________________________________________________


                   A  BILL  FOR  AN  ACT

RELATING TO CRIMINAL BACKGROUND CHECKS FOR THE DEPARTMENT OF
HEALTH.



BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

 1      SECTION 1.  Chapter 321, Hawaii Revised Statutes, is amended
 
 2 by adding to part I a new section to be appropriately designated
 
 3 and to read as follows:
 
 4      "§321-  Criminal background checks for the department of
 
 5 health.  (a)  The department of health shall develop procedures
 
 6 for obtaining verifiable information regarding the criminal
 
 7 history of persons who are employed or seeking employment with
 
 8 the department of health, providers, or subcontractors in
 
 9 positions which place them in direct contact with clients when
 
10 providing medical non-witnessed direct mental health, or
 
11 substance abuse treatment services.  These procedures shall
 
12 include criminal history record checks.
 
13      (b)  For the purposes of this section, "criminal history
 
14 record check" means an examination or search for evidence of an
 
15 individual's criminal history by means of:
 
16      (1)  A search for the individual's fingerprints in the
 
17           Federal Bureau of Investigation criminal history record
 
18           files and, if found, an analysis and any other
 
19           information pertaining thereto; and
 

 
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 1      (2)  A criminal history record check from the files
 
 2           maintained by the Hawaii criminal justice data center.
 
 3      (c)  Except as otherwise specified, any person seeking
 
 4 employment with the department of health, provider, or
 
 5 subcontractor in a position that necessitates direct contact with
 
 6 clients when providing non-witnessed direct medical, mental
 
 7 health, or substance abuse services shall submit to the
 
 8 department of health personnel service or designated department
 
 9 subdivision the following:
 
10      (1)  A sworn statement signed under penalty of perjury
 
11           indicating whether the individual has ever been
 
12           convicted of a crime other than a minor traffic
 
13           violation involving a fine of $            or less and
 
14           details of any conviction thereof;
 
15      (2)  Written consent for the department of health and the
 
16           designated subdivision to conduct a criminal history
 
17           record check as provided in subsection (a); and
 
18      (3)  Permission to be fingerprinted for the purpose of the
 
19           Federal Bureau of Investigation criminal history record
 
20           check.
 
21      (d)  For the purposes of this section:
 
22      "Provider" means any organization or individual that intends
 
23 to enter into a contract with or is currently contracted by the
 

 
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 1 department of health to provide direct medical, mental health, or
 
 2 substance abuse treatment services to the department's eligible
 
 3 clients.
 
 4      "Subcontractor" means any organization or individual that
 
 5 enters into a contract or agreement with a provider to provide
 
 6 direct medical, mental health, or substance abuse treatment
 
 7 services to the department of health's eligible clients.
 
 8      (e)  The department of health and its designated
 
 9 subdivisions may obtain criminal history record information
 
10 through the Hawaii criminal justice data center on providers,
 
11 subcontractors, and employees and prospective employees of the
 
12 department of health whose contract or employment with the
 
13 department of health necessitates placing them in direct contact
 
14 with clients when providing non-witnessed direct medical, mental
 
15 health, or substance abuse services.  Information obtained
 
16 pursuant to subsections (a), (b), (c), and this subsection shall
 
17 be used exclusively by the department of health for the purpose
 
18 of determining whether an employee or prospective employee of the
 
19 department of health, provider, or subcontractor whose contract
 
20 or employment with the department of health necessitates direct
 
21 contact with clients when providing non-witnessed direct medical,
 
22 mental health, or substance abuse services is suitable to work
 
23 with the department of health.
 

 
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 1      (f)  Providers and subcontractors shall provide the names of
 
 2 all employees to the designated department of health subdivision
 
 3 upon approval of this Act, and shall provide the names of new
 
 4 employees and subcontractors within five days of employment for
 
 5 the purpose of complying with the criminal history record check.
 
 6      (g)  The Hawaii criminal justice data center may assess
 
 7 providers and subcontractors a reasonable fee for criminal
 
 8 history record checks performed.  Providers and subcontractors
 
 9 shall be responsible for payment to the Hawaii criminal justice
 
10 data center for the cost of the criminal history record checks.
 
11      (h)  The department of health may deny employment to a
 
12 prospective employee of the department who refuses to:
 
13      (1)  Submit to the department statements indicating criminal
 
14           convictions;
 
15      (2)  Provide consent to the department to conduct a criminal
 
16           history record check or obtain other criminal history
 
17           record information for verification;
 
18      (3)  Be fingerprinted, or has been convicted of a crime
 
19           other than a minor traffic violation involving a fine
 
20           of $            or less, the nature of which the
 
21           department finds poses a risk to the health, safety,
 
22           security, or well-being of clients receiving
 
23           non-witnessed direct medical, mental health, or
 

 
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 1           substance abuse services.
 
 2      (i)  The department of health may terminate the employment
 
 3 of an employee whose employment necessitates placing them in
 
 4 direct contact with clients when providing non-witnessed direct
 
 5 medical, mental health, or substance abuse services if the
 
 6 employee has been convicted of a crime other than a minor traffic
 
 7 violation involving a find of $           or less and the
 
 8 department finds that the criminal history record of the employee
 
 9 may pose a risk to the health, safety, or well-being of
 
10 department of health clients receiving non-witnessed direct
 
11 medical, mental health, or substance abuse services.
 
12      (j)  The department of health may deny a contract or
 
13 agreement to a provider or subcontractor who refuses to:
 
14      (1)  Submit to the department statements indicating criminal
 
15           convictions;
 
16      (2)  Provide consent to the department to conduct a criminal
 
17           history record check or obtain other criminal history
 
18           record information for verification;
 
19      (3)  Be fingerprinted, or has been convicted of a crime
 
20           other than a minor traffic violation involving a fine
 
21           of $           or less, the nature of which the
 
22           department finds poses a risk to the health, safety,
 
23           security, or well-being of clients receiving
 

 
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 1           non-witnessed direct medical, mental health, or
 
 2           substance abuse services.
 
 3      (k)  The department of health may require that the provider
 
 4 or subcontractor terminate the employment of an employee in order
 
 5 to maintain the contract between the department of health and the
 
 6 provider or subcontractor if:
 
 7      (1)  The employee has been convicted of a crime other than a
 
 8           minor traffic violation involving a fine of $          
 
 9           or less; or
 
10      (2)  The criminal history record of the employee indicates
 
11           that the employee
 
12 may pose a risk to the health, safety, or well-being of
 
13 department of health clients receiving non-witnessed direct
 
14 medical, mental health, or substance abuse services.
 
15      (l)  For purposes of this section, denial or termination of
 
16 employment or agreement may occur only after appropriate
 
17 investigation, notification to the prospective employee,
 
18 provider, or subcontractor of results and planned action, and an
 
19 opportunity by the prospective employee, provider, or
 
20 subcontractor to meet and rebut the determination of the
 
21 department to deny or terminate employment.
 
22      (m)  For the purpose of this section, notwithstanding any
 
23 other law to the contrary, the department of health shall be
 

 
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 1 exempt from section 831-3.1 and need not conduct its
 
 2 investigations, notifications, or hearings in accordance with
 
 3 chapter 91.
 
 4      (n)  For the purpose of this section background checks shall
 
 5 be conducted first for all providers and subcontractors, and
 
 6 those employees not employed by the department of health
 
 7 continuously on a salaried basis prior to July 1, 1990, followed
 
 8 by all other employees of the department of health."
 
 9      SECTION 2.  Section 846-10, Hawaii Revised Statutes, is
 
10 amended to read as follows:
 
11      "§846-10  Dissemination.  Criminal history record
 
12 information may be disseminated to: 
 
13      (1)  The governor in individual cases or situations wherein
 
14           the governor elects to become actively involved in the
 
15           investigation of criminal activity or the
 
16           administration of criminal justice in accordance with
 
17           the governor's constitutional duty to insure that the
 
18           laws be faithfully executed; 
 
19      (2)  The attorney general in connection with the attorney
 
20           general's statutory authority and duties in the
 
21           administration and enforcement of the criminal laws and
 
22           for the purpose of administering and insuring
 
23           compliance with the provisions of this chapter;
 

 
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 1      (3)  The department of health for purposes of section 321- ;
 
 2           and 
 
 3     [(3)] (4)  To such other individuals and agencies who are
 
 4           provided for in this chapter or by rule or regulation."
 
 5      SECTION 3.  Statutory material to be repealed is bracketed.
 
 6 New statutory material is underscored.
 
 7      SECTION 4.  This Act shall take effect upon its approval.
 

 
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