REPORT TITLE: 
Criminal history checks


DESCRIPTION:
Requires the department of health to conduct criminal history
record checks for employees, applicants, providers, and
subcontractors in positions which necessitate direct contact
with clients when providing non-witnessed direct mental health
services.  Requires private schools, in cooperation with the
Hawaii criminal justice data center, to conduct criminal history
verifications of applicants for employment in positions
necessitating close proximity to children.  (HB2098 CD1)

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                        2098
HOUSE OF REPRESENTATIVES                H.B. NO.           H.D. 2
TWENTIETH LEGISLATURE, 2000                                S.D. 1
STATE OF HAWAII                                            C.D. 1
                                                             
________________________________________________________________
________________________________________________________________


                     A BILL FOR AN ACT

RELATING TO CRIMINAL HISTORY.



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

 1      SECTION 1.  Chapter 846, Hawaii Revised Statutes, is amended
 
 2 by adding a new section to part III to be appropriately
 
 3 designated and to read as follows:
 
 4      "846-     Employees of the department of health, its
 
 5 providers and subcontractors; criminal history checks.  (a)  The
 
 6 department of health shall develop procedures for obtaining
 
 7 verifiable information regarding the criminal history of persons
 
 8 who are seeking employment, or seeking to serve as providers or
 
 9 subcontractors in positions that place them in direct contact
 
10 with clients when providing non-witnessed direct mental health
 
11 services on behalf of the child and adolescent mental health
 
12 division of the department of health.  These procedures shall
 
13 include but not be limited to criminal history record checks.
 
14      The Hawaii criminal justice data center may assess providers
 
15 and subcontractors a reasonable fee for criminal history record
 
16 checks performed.  Providers and subcontractors shall be
 
17 responsible for payment to the Hawaii criminal justice data
 
18 center for the cost of the criminal history record checks.
 

 
Page 2                                                     2098
                                     H.B. NO.           H.D. 2
                                                        S.D. 1
                                                        C.D. 1
                                                        

 1      (b)  Except as otherwise specified, any person who seeks
 
 2 employment with the department of health, or who is employed or
 
 3 seeks employment with a provider or subcontractor in a position
 
 4 that necessitates non-witnessed direct contact with clients when
 
 5 providing non-witnessed direct mental health services on behalf
 
 6 of the child and adolescent mental health division, shall be
 
 7 required to provide to the department of health:
 
 8      (1)  A sworn statement indicating whether the person has
 
 9           ever been convicted of an offense for which
 
10           incarceration is a sentencing option and the details
 
11           thereof;
 
12      (2)  Written consent for the department of health to conduct
 
13           a criminal history record check as provided for in
 
14           subsection (a) and to obtain other information for
 
15           verification; and
 
16      (3)  Permission to be fingerprinted for the purpose of the
 
17           Federal Bureau of Investigation criminal history record
 
18           check.
 
19      Information obtained pursuant to subsection (a) and this
 
20 subsection shall be used exclusively by the department of health
 
21 for the purposes of determining whether a person is suitable for
 
22 working in a position that necessitates non-witnessed direct
 
23 contact with clients when providing non-witnessed direct mental
 

 
Page 3                                                     2098
                                     H.B. NO.           H.D. 2
                                                        S.D. 1
                                                        C.D. 1
                                                        

 1 health services on behalf of the child and adolescent mental
 
 2 health division.  All such decisions shall be subject to federal
 
 3 laws and regulations currently or hereafter in effect.
 
 4      (c)  The department of health may refuse to employ or may
 
 5 terminate the employment of any employee or applicant if the
 
 6 person has been convicted of an offense for which incarceration
 
 7 is a sentencing option, and if the department of health finds by
 
 8 reason of the nature and circumstances of the crime that the
 
 9 person poses a risk to the health, safety, or well-being of
 
10 clients receiving non-witnessed direct mental health services.
 
11 Such refusal or termination may occur only after appropriate
 
12 investigation, notification of results and planned action, and
 
13 opportunity to meet and rebut the finding, all of which need not
 
14 be conducted in accordance with chapter 91.
 
15      (d)  This section shall not be used by the department of
 
16 health to secure criminal history record checks on persons who
 
17 have been employed continuously on a salaried basis prior to July
 
18 1, 2000.
 
19      (e)  Nothing in this section shall prohibit criminal history
 
20 record checks on employees of all providers and subcontractors.
 
21      (f)  For the purposes of this section:
 
22      "Criminal history record check" means an examination or
 
23 search for evidence of an individual's criminal history by means
 
24 of:
 

 
Page 4                                                     2098
                                     H.B. NO.           H.D. 2
                                                        S.D. 1
                                                        C.D. 1
                                                        

 1      (1)  A search of the individual's fingerprints in the
 
 2           Federal Bureau of Investigation criminal history record
 
 3           files and, if found, an analysis and any other
 
 4           information available pertaining thereto; and
 
 5      (2)  A criminal history record check conducted through the
 
 6           files maintained by the Hawaii criminal justice data
 
 7           center.
 
 8      "Provider" means any organization or individual that intends
 
 9 to enter into a contract with or is currently contracted by the
 
10 child and adolescent mental health division of the department of
 
11 health to provide direct mental health services to the
 
12 department's eligible clients.
 
13      "Subcontractor" means any organization or individual that
 
14 enters into a contract or agreement with a provider to provide
 
15 direct mental health services to the department's eligible
 
16 clients.
 
17      (g)  Notwithstanding any other law to the contrary, the
 
18 department of health shall be exempt from section 831-3.1 for
 
19 purposes of this section and need not conduct its investigations,
 
20 notifications, or hearings in accordance with chapter 91."
 
21      SECTION 2. Section 846-44, Hawaii Revised Statutes, is
 
22 amended to read as follows:
 

 
 
 
Page 5                                                     2098
                                     H.B. NO.           H.D. 2
                                                        S.D. 1
                                                        C.D. 1
                                                        

 1      "[[]846-44[]]  Employees of private schools; criminal
 
 2 history record checks.(a)  Private schools [may] shall develop
 
 3 procedures for obtaining verifiable information regarding the
 
 4 criminal history of persons who are employed or are seeking
 
 5 employment in positions [which] that place them in close
 
 6 proximity to children.  These procedures shall include but not be
 
 7 limited to criminal history record checks.  [For the purposes of
 
 8 this section, "criminal history record check" means an
 
 9 examination or search for evidence of an individual's criminal
 
10 history by means of a criminal history record check conducted by
 
11 the Hawaii criminal justice data center; provided that the Hawaii
 
12 criminal justice data center may charge a reasonable fee for
 
13 criminal history record checks performed at the request of a
 
14 private school.]  The private school and designated organization
 
15 shall establish safeguards and procedures to protect against
 
16 inadvertent or inappropriate disclosure of information obtained
 
17 under this section.  The Hawaii criminal justice data center may
 
18 charge a private school or designated organization a reasonable
 
19 fee to cover the cost of the state and Federal Bureau of
 
20 Investigation criminal history record check, which may be passed
 
21 on to the applicant by the private school or designated
 
22 organization.  
 

 
 
 
Page 6                                                     2098
                                     H.B. NO.           H.D. 2
                                                        S.D. 1
                                                        C.D. 1
                                                        

 1      (b)  Except as otherwise specified, any person who is
 
 2 employed or seeks employment with a private school in a position
 
 3 [which] that necessitates close proximity to children [may be
 
 4 required to] shall provide to the private school [a] or
 
 5 designated organization:
 
 6      (1)  A sworn statement indicating whether or not the person
 
 7           has ever been convicted of an offense for which
 
 8           incarceration is a sentencing option, and the details
 
 9           [of the offense.] thereof;
 
10      (2)  Written consent for the private school or designated
 
11           organization to conduct a criminal history record
 
12           check; and
 
13      (3)  Permission to be fingerprinted for the purpose of the
 
14           Federal Bureau of Investigation criminal history check.
 
15      Information obtained pursuant to [subsection (a) and this
 
16 subsection] this section shall be used exclusively by the private
 
17 school or designated organization for the purpose of determining
 
18 whether or not a person is suitable for working in close
 
19 proximity to children.  All decisions shall be subject to federal
 
20 laws and regulations currently or hereafter in effect.
 
21      (c)  Private schools may refuse to employ or may terminate
 
22 the employment of an employee or applicant if the person has been
 
23 convicted of an offense for which incarceration is a sentencing
 

 
Page 7                                                     2098
                                     H.B. NO.           H.D. 2
                                                        S.D. 1
                                                        C.D. 1
                                                        

 1 option, and if the private school finds by reason of the nature
 
 2 and circumstances of the crime that the person poses a risk to
 
 3 the health, safety, or well-being of children.  This refusal or
 
 4 termination may occur only after appropriate investigation,
 
 5 notification of results and planned action, and opportunity to
 
 6 meet and rebut the finding.
 
 7      (d)  The State, the Hawaii criminal justice data center, and
 
 8 their respective officers and employees, shall be immune from
 
 9 civil liability for any official act, decision, or omission
 
10 performed pursuant to this section that is not the result of
 
11 gross negligence or wilful misconduct.  The State, the Hawaii
 
12 criminal justice data center, and their respective officers and
 
13 employees shall be immune from civil liability for any act,
 
14 decision, omission to act or decide, or use of the information by
 
15 any private school or designated organization authorized to
 
16 receive or who receives information pursuant to this section.
 
17      (e)  This section shall not be used by the private schools
 
18 to secure criminal history record checks on persons who have been
 
19 employed continuously by the private school on a salaried basis
 
20 prior to July 1, 2000.
 
21      (f)  For the purposes of this section:
 
22      "Criminal history record check" means an examination or
 
23 search for evidence of an individual's criminal history by means
 
24 of:
 

 
Page 8                                                     2098
                                     H.B. NO.           H.D. 2
                                                        S.D. 1
                                                        C.D. 1
                                                        

 1      (1)  A search of the individual's fingerprints in the
 
 2           Federal Bureau of Investigation criminal history record
 
 3           files, and, if found, an indication of the state from
 
 4           which the records were provided; and
 
 5      (2)  A criminal history record check through the files
 
 6           maintained by the Hawaii criminal justice data center.
 
 7      "Designated organization" means a private organization that
 
 8 receives the criminal history record checks on behalf of private
 
 9 schools."
 
10      SECTION 3.  There is appropriated out of the state criminal
 
11 history record improvement revolving fund the sum of $40,000 or
 
12 so much thereof as may be necessary for fiscal year 2000-2001 to
 
13 effectuate the purposes of this act.  The sum appropriated shall
 
14 be expended by the department of the attorney general for the
 
15 purpose of this Act.
 
16      SECTION 4.  Statutory material to be repealed is bracketed.
 
17 New statutory material is underscored.
 
18      SECTION 5.  This Act shall take effect upon its approval;
 
19 provided that section 1 of this Act shall be repealed on June 30,
 
20 2001.