SB96 SD3

SECTION 1. Chapter 302A, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:

"§302A‑ Employees of the department and teacher trainees in any public school; reasonable suspicion testing; employee assistance. (a) The department, including the Hawaii state public library system, shall develop procedures for reasonable suspicion testing to obtain verifiable information regarding use of controlled substances under chapter 329, by persons who are employed in any position, including teacher trainees, that places them in close proximity to children. These procedures shall comply with chapter 329B.

Information obtained pursuant to this subsection shall be used exclusively by the employer for the purpose of determining whether a person is suitable for working in close proximity to children.

An employee who refuses to submit to drug testing under this subsection shall be placed on mandatory administrative leave of thirty days.

(b) If the test results under subsection (a) are positive, the employer may impose the following sanctions:

(1) Refuse to issue a teaching or other educational certificate;

(2) Revoke the teaching or other educational certificate;

(3) Refuse to allow or continue to allow participation in teacher training;

(4) Terminate the employment of any employee or deny employment to an applicant; or

(5) Impose other administrative sanctions, including but not limited to, administrative leave,

if the employer finds by reason of the nature and circumstances of the use of controlled substances that the person poses a risk to the health, safety, or well‑being of children, or otherwise negatively influences children by setting a detrimental example. Sanctions under this subsection may occur only after appropriate investigation and notification to the employee of the results and planned action, and after the employee is given an opportunity to meet and rebut the finding. Nothing in this subsection shall abrogate any applicable appeal rights under chapter 76 or 89, or administrative rule of the department.

(c) In addition to the sanctions under subsection (b), the department, by adoption of rules pursuant to chapter 91, shall provide for substance abuse assessment, treatment, and counseling, and referral to the employee assistance program under subsection (e) if suitable, if the department determines to retain the employee; provided that evidence of clinical discharge from substance abuse treatment or substance abuse counseling shall be a prerequisite to continued employment.

(d) Notwithstanding any other law to the contrary, for purposes of this section, the department need not conduct investigations, notifications, or hearings under this section in accordance with chapter 91.

(e) This section shall not apply to volunteers or other non‑remunerated personnel providing support services at individual schools or any employee subject to a substance abuse testing policy under a valid collective bargaining agreement."

SECTION 2. Section 302A-101, Hawaii Revised Statutes, is amended by adding three new definitions to be appropriately inserted and to read as follows:

""Provider" means any individual that intends to, or is employed by an organization that intends to, enter into a contract with, or is currently contracted by the department to, provide services that place the provider in close proximity to children.

"Subcontractor" means any individual that enters into, or is employed by an organization that enters into, a contract or agreement with a provider to provide services that place the subcontractor in close proximity to children.

"Trainee from an institution of higher education" means a student in an institution of higher education training program that requires public school observation or participation that places the student in close proximity to children."

SECTION 3. Section 302A-601.5, Hawaii Revised Statutes, is amended to read as follows:

"[[]§302A-601.5[]] Employees of the department [~~of education~~ ~~and teacher trainees in any public school;~~], providers, subcontractors, and trainees from an institution of higher education; criminal history record checks. (a) The department [~~of education~~], including the Hawaii state public library system, shall develop procedures for obtaining verifiable information regarding the criminal history of persons who are employed or seeking employment in any position, including [~~teacher trainees,~~] persons who are seeking to serve as providers, subcontractors, or trainees from an institution of higher education, that places them in close proximity to children. These procedures shall include criminal history record checks in accordance with section 846-2.7.

Information obtained pursuant to this subsection shall be used exclusively by the employer or prospective employer for the purpose of determining whether a person is suitable for working in close proximity to children. All [~~such~~] decisions shall be subject to applicable federal laws and regulations currently or hereafter in effect.

(b) The employer or prospective employer may refuse to employ[,] or contract with an employee, prospective employee, provider, or subcontractor, or may refuse to place a trainee from an institution of higher education, and may:

[~~(1)~~ ~~Refuse to issue a teaching or other educational certificate;~~

~~(2)~~ ~~Revoke the teaching or other educational certificate;~~

~~(3)~~] (1) Refuse to allow or continue to allow teacher training; or

[~~(4)~~] (2) Terminate the employment of any employee or deny employment to an applicant,

if the person has been convicted of a crime, and if the employer or prospective employer finds by reason of the nature and circumstances of the crime that the person poses a risk to the health, safety, or well-being of children. Refusal[, ~~revocation,~~] or termination may occur only after appropriate investigation and notification to the employee or applicant for employment of results and planned action, [~~and~~] after the employee [or], applicant for employment, provider, subcontractor, or trainee from an institution of higher education is given an opportunity to meet and rebut the finding. Nothing in this subsection shall abrogate any applicable appeal rights under [~~chapters~~] chapter 76 or 89, or administrative regulation of the department [~~of education~~].

(c) This section shall not be used by the department to secure criminal history record checks on persons who have been employed continuously by the department, including the state public library system, on a salaried basis prior to July 1, 1990.

(d) The fee charged by the Hawaii criminal justice data center to perform criminal history record checks may be passed on to applicants, providers, subcontractors, and trainees from an institution of higher education.

[~~(d)~~] (e) Notwithstanding any other law to the contrary, for the purposes of this section, the department [~~of education~~], including the Hawaii state public library system, shall be exempt from section 831-3.1 and need not conduct investigations, notifications, or hearings under this section in accordance with chapter 91."

SECTION 4. Section 846-2.7, Hawaii Revised Statutes, is amended by amending subsection (b) to read as follows:

"(b) Criminal history record checks may be conducted by:

(1) The department of health on operators of adult foster homes or developmental disabilities domiciliary homes and their employees, as provided by section 333F-22;

(2) The department of health on prospective employees, persons seeking to serve as providers[,] or subcontractors in positions that place them in direct contact with clients when providing non-witnessed direct mental health services as provided by section 321-171.5;

(3) The department of health on all applicants for licensure for, operators for, and prospective employees, and volunteers at one or more of the following: skilled nursing facility, intermediate care facility, adult residential care home, expanded adult residential care homes, assisted living facility, home health agency, hospice, adult day health center, special treatment facility, therapeutic living program, intermediate care facility for the mentally retarded, hospital, rural health center and rehabilitation agency, and, in the case of any of the above-related facilities operating in a private residence, on any adult living in the facility other than the client as provided by section 321-15.2;

(4) The department of education on employees, prospective employees, providers, subcontractors, and [~~teacher~~] trainees from an institution of higher education in any public school in positions that necessitate close proximity to children as provided by section 302A‑601.5;

(5) The counties on employees and prospective employees who may be in positions that place them in close proximity to children in recreation or child care programs and services;

(6) The county liquor commissions on applicants for liquor licenses as provided by section 281-53.5;

(7) The department of human services on operators and employees of child caring institutions, child placing organizations, and foster boarding homes as provided by section 346-17;

(8) The department of human services on prospective adoptive parents as established under section 346‑19.7;

(9) The department of human services on applicants to operate child care facilities, prospective employees of the applicant, and new employees of the provider after registration or licensure as provided by section 346-154;

(10) The department of human services on persons exempt pursuant to section 346-152 to be eligible to provide child care and receive child care subsidies as provided by section 346-152.5;

(11) The department of human services on operators and employees of home and community-based case management agencies and operators and other adults, except for adults in care, residing in foster family homes as provided by section 346-335;

(12) The department of human services on staff members of the Hawaii youth correctional facility as provided by section 352-5.5;

(13) The department of human services on employees, prospective employees, and volunteers of contracted providers and subcontractors in positions that place them in close proximity to youth when providing services on behalf of the office or the Hawaii youth correctional facility as provided by section 352D‑4.3;

(14) The judiciary on employees and applicants at detention and shelter facilities as provided by section 571-34;

(15) The department of public safety on employees and prospective employees who are directly involved with the treatment and care of persons committed to a correctional facility or who possess police powers including the power of arrest as provided by section 353C-5;

(16) The department of commerce and consumer affairs on applicants for private detective or private guard licensure as provided by section 463-9;

(17) Private schools and designated organizations on employees and prospective employees who may be in positions that necessitate close proximity to children; provided that private schools and designated organizations receive only indications of the states from which the national criminal history record information was provided as provided by section 302C‑1;

(18) The public library system on employees and prospective employees whose positions place them in close proximity to children as provided by section 302A‑601.5;

(19) The State or any of its branches, political subdivisions, or agencies on applicants and employees holding a position that has the same type of contact with children, dependent adults, or persons committed to a correctional facility as other public employees who hold positions that are authorized by law to require criminal history record checks as a condition of employment as provided by section 78-2.7;

(20) The department of human services on licensed adult day care center operators, employees, new employees, subcontracted service providers and their employees, and adult volunteers as provided by section 346-97;

(21) The department of human services on purchase of service contracted and subcontracted service providers and their employees serving clients of the adult and community care services branch, as provided by section 346-97;

(22) The department of human services on foster grandparent program, senior companion program, and respite companion program participants as provided by section 346-97;

(23) The department of human services on contracted and subcontracted service providers and their current and prospective employees that provide home and community-based services under Section 1915(c) of the Social Security Act (42 U.S.C. §1396n(c)), as provided by section 346-97; and

(24) Any other organization, entity, or the State, its branches, political subdivisions, or agencies as may be authorized by state law."

SECTION 5. There is appropriated out of the general revenues of the State of Hawaii the sum of $ , or so much thereof as may be necessary for fiscal year 2007-2008, for the department of education to conduct criminal history record checks in accordance with section 2 this Act.

The sum appropriated shall be expended by the department of education for the purposes of this Act.

SECTION 6. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 7. This Act shall take effect on July 1, 2050.

THE SENATE	S.B. NO.	96
TWENTY-FOURTH LEGISLATURE, 2007		S.D. 3
STATE OF HAWAII