Report Title:

Background Checks

Description:

Requires the Department of Human Services to establish standards, which shall include criminal history record, Adult Protective Service (APS) and Child Protective Service (CPS) checks, to ensure the reputable and responsible character of service providers who have direct contact with individuals receiving services.

HOUSE OF REPRESENTATIVES

H.B. NO.

2456

TWENTY-SECOND LEGISLATURE, 2004

 

STATE OF HAWAII

 


 

A BILL FOR AN ACT

 

RELATING TO BACKGROUND CHECKS FOR PROVIDERS OF HOME AND COMMUNITY-BASED SERVICES.

 

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

SECTION 1. Chapter 346, Hawaii Revised Statutes, is amended by adding to part IV a new section to be appropriately designated and to read as follows:

"§346- Background checks. (a) The department shall adopt, pursuant to chapter 91, rules relating to standards to ensure the reputable and responsible character of service providers who may have direct contact with individuals receiving services, including:

(1) Licensed adult day care center operators, employees, new employees, subcontracted service providers and their employees, and adult volunteers;

(2) Purchase of service contracted and subcontracted service providers and their employees;

(3) Foster grandparent program, senior companion program, and respite companion program participants; and

(4) Contracted and subcontracted service providers and their employees that provide home and community-based services under section 1915(c) of the Social Security Act (42 U.S.C. §1396n(c)).

(b) Individuals identified in subsection (a) shall:

(1) Be subject to criminal history record checks in accordance with section 846-2.7;

(2) Be subject to adult abuse perpetrator checks, if the individual has direct contact with an adult receiving services. For purposes of this section, "adult abuse perpetrator check" means a search to determine whether an individual is known to the department as a perpetrator of abuse as defined in section 346-222, by means of a search of the individual's name and birth date in the department's adult protective service file;

(3) Be subject to child abuse perpetrator checks, if the individual has direct contact with a minor receiving services. For purposes of this section, "child abuse perpetrator check" means a search to determine whether an individual is known to the department as a perpetrator of child abuse or neglect as defined in section 350-1, by means of a search of the individual's name and birth date in the department's child protective service file;

(4) Provide consent to the department to conduct an adult abuse perpetrator or child abuse perpetrator check, as appropriate, and to obtain other criminal history record information for verification; and

(5) Provide a sworn statement indicating whether or not the person has ever been determined to be a perpetrator of adult abuse or child abuse, as appropriate.

New sole proprietor providers, employees, and adult volunteers shall be fingerprinted within five working days of employment or volunteering, for the purpose of complying with the criminal history record check requirement.

(c) The department shall conduct a check of the Federal Bureau of Investigation and the state criminal history record files, and adult or child abuse perpetrator record, as appropriate, for the first two years when an individual identified in subsection (a) is required to have such checks, and a name inquiry into the state criminal history records, and adult or child abuse perpetrator record, as appropriate, annually or biennially thereafter.

(d) The department may implement appropriate action if an individual identified in subsection (a) has been convicted of a crime or is a perpetrator of abuse as defined in section 346-222 or child abuse as defined in section 350-1 that the department determines will pose a risk to the health, safety, or well-being of service recipients. Such action may include:

(1) Denying a certificate of approval to operate an adult day care center; or

(2) Refusing to use an individual as a service provider.

(e) The Hawaii criminal justice data center may assess a reasonable fee for each criminal history record check conducted. The information obtained shall be used exclusively for the stated purpose for which it was obtained and shall be subject to applicable federal laws and regulations."

SECTION 2. 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 on behalf of the child and adolescent mental health division, as provided by section 321-171.5;

(3) The department of education on employees, prospective employees, and teacher trainees in any public school in positions that necessitate close proximity to children as provided by [[]section[]] 302A-601.5;

(4) 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;

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

(6) 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;

(7) The department of human services on prospective adoptive parents as established under [[]section 346-19.7[]];

(8) 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 in section [[]346-154[]];

(9) 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[]];

(10) 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-E;

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

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

(13) 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;

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

(15) 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;

(16) 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;

(17) 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; [and]

(18) 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- ;

(19) The department of human services on purchase of service contracted and subcontracted service providers and their employees who may have direct contact with individuals receiving services as provided by section 346- ;

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

(21) The department of human services on contracted and subcontracted service providers and their 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- ; and

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

SECTION 3. There is appropriated out of the state criminal history record improvement revolving fund the sum of $50,000, or so much thereof as may be necessary, for fiscal year 2004-2005 to effectuate the purpose of this Act. The sum appropriated shall be expended by the department of the attorney general.

SECTION 4. There is appropriated out of the general revenues of the State of Hawaii the sum of $35,449, or so much thereof as may be necessary, for fiscal year 2004-2005, of which sum $19,645 shall be financed out of other federal funds for staff to assist in performing background check activities related to this Act. The sum appropriated shall be expended by the department of human services.

SECTION 5. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 6. This Act shall take effect upon its approval.

INTRODUCED BY:

_____________________________

BY REQUEST