Report Title:

Criminal Background Checks; Adult Residential Care Homes

Description:

Requires all employees working directly with adult residential care home and expanded adult residential care home patients to submit to an interstate criminal background check prior to final consideration for employment with an adult health care facility.

THE SENATE

S.B. NO.

1195

TWENTY-THIRD LEGISLATURE, 2005

  

STATE OF HAWAII

  

 

A BILL FOR AN ACT

 

relating to criminal background checks.

 

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

SECTION 1. Chapter 321, Hawaii Revised Statutes, is amended by adding a new part to be appropriately designated and to read as follows:

"Part   . criminal background checks

§321-A Criminal background checks. (a) Except as provided in section 321-F, all adult residential care homes and expanded adult residential care homes shall request the department of health to conduct a criminal background check for each applicant. If an applicant does not present proof of having been a resident of this State for the five-year period immediately prior to the date the criminal background check is requested, the department of health shall request the Federal Bureau of Investigation to conduct a national criminal background check of the applicant. Even if the applicant provides proof of having been a resident of this State for the five-year period, the department of health may request a national criminal background check from the Federal Bureau of Investigation in its discretion.

(b) All adult residential care homes and expanded adult residential care homes shall provide the department of health with each applicant's:

(1) Rolled set of fingerprints;

(2) Written statement disclosing any previous criminal history information;

(3) Signed statement authorizing the department of health to request national and state criminal background check; and

(4) Identification information that the department of health may require.

(c) The director of health shall adopt rules pursuant to chapter 91 for the purposes of administering and implementing this part.

(d) As used in this part, unless the context clearly requires otherwise:

"Applicant" means a person who is under final consideration for employment with a facility in a full-time, part-time, or temporary position that provides direct care to an adult residential care home or expanded adult residential care home patient. "Applicant" does not include a person who provides direct care as a volunteer without receiving or expecting to receive any form of renumeration other than reimbursement for actual expenses.

§321-B Disqualification for employment. (a) After conducting the criminal background check, the department of health shall determine if an individual's past criminal conviction places the residents of the adult residential care home or expanded adult residential care home at risk. If the department of health determines that the applicant's past criminal conviction may place the residents at risk, the adult residential care home or expanded adult residential care home shall not employ the applicant for any position that requires a criminal background check under this part.

(b) In making its determination, the department of health shall consider:

(1) The type of conviction;

(2) The age of the perpetrator at the time of the conviction;

(3) The length of time since the conviction; and

(4) Evidence of rehabilitation.

§321-C Conditional employment. (a) An adult residential care home or expanded adult residential care home may conditionally employ an applicant prior to obtaining the results of the criminal background check, provided that the adult residential care home or expanded adult residential care home shall request the criminal background check within five business days after the applicant begins conditional employment.

(b) An adult residential care home or expanded adult residential care home that employs an applicant conditionally shall terminate the individual's employment if the department of health determines that the applicant may place the adult residential care home's or expanded adult residential care home's residents at risk.

§321-D Criminal background check fees. Each adult residential care home or expanded adult residential care home shall pay the department of health the fee required by the Federal Bureau of Investigation to conduct the criminal background check. The adult residential care home or expanded adult residential care home may collect the fee from the applicant if, at the time of the initial application for employment, the adult residential care home or expanded adult residential care home notifies the applicant:

(1) Of the amount of the fee; and

(2) That, unless the fee is paid, the person will not be considered for employment.

§321-E Criminal background check report. The report of any criminal background check conducted pursuant to a request made under this part shall not be a public record and shall be available to only:

(1) The applicant who is the subject of the criminal background check or the applicant's representative;

(2) The adult residential care home or expanded adult residential care home requesting the criminal records check or its representative;

(3) A court, hearing officer, or other necessary individual involved in a case dealing with a denial of employment of the applicant or dealing with employment or unemployment benefits of the applicant; and

(4) Any person to whom the report is provided in accordance with section 321-F.

§321-F Exceptions. (a) An adult residential care home or expanded adult residential care home shall not be required to request a criminal background check for an applicant if:

(1) The applicant has been referred by an employment service that supplies full-time, part-time, and temporary staff for adult residential care home or expanded adult residential care home positions;

(2) Adult residential care home or expanded adult residential care home receives from the employment service or the applicant a report of the results of a criminal background check conducted by the department of health within one year immediately preceding the applicant's referral; and

(3) The criminal background check report shows that the department of health finds that the applicant does place the adult residential care home's or expanded adult residential care home's residents at risk.

(b) An adult residential care home or expanded adult residential care home shall not be required to request a criminal background check and may employ the applicant conditionally if:

(1) The applicant has been referred by an employment service that supplies full-time, part-time, and temporary staff for adult residential care home or expanded adult residential care home positions; and

(2) The adult residential care home or expanded adult residential care home receives a letter from the employment service on its letterhead and signed and dated by the applicant's supervisor stating that:

(A) A request to the department of health for a criminal background check on the applicant has been made;

(B) As of the date on the letter, the employment service had not received the results of the criminal background check; and

(C) When the employment service receives the results, it will promptly send a copy of the results to the adult residential care home or expanded adult residential care home.

§321-G Civil actions; limitations. In a civil action for damages for an injury, death, or loss to person or property caused by an individual who provides direct care to adult residential care home or expanded adult residential care home patients, the adult residential care home or expanded adult residential care home shall not be liable for negligence if the home:

(1) Employed the individual in good faith and reasonably relied on the report of a criminal records check requested under this part, even if the information in the report is determined later to have been incomplete or inaccurate; and

(2) Employed the person on a conditional basis pursuant to section 321-C, solely because it employed the individual prior to receiving the report of a criminal records check requested."

SECTION 2. In codifying the new sections added by section 1 of this Act, the revisor of statutes shall substitute appropriate section numbers for the letters used in designating the new sections in this Act.

SECTION 3. This Act shall take effect upon its approval.

INTRODUCED BY:

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