Report Title:

Criminal History Record Checks; DOE

Description:

Requires the department of education to conduct Criminal history record checks providers and subcontractors who perform unsupervised mental or behavioral health services.

HOUSE OF REPRESENTATIVES

H.B. NO.

2857

TWENTY-SECOND LEGISLATURE, 2004

 

STATE OF HAWAII

 


 

A BILL FOR AN ACT

 

relating to criminal history record checks.

 

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

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

"§302A-    Providers and subcontractors of the department of education; criminal history checks. (a) The department of education shall develop procedures for obtaining verifiable information regarding the criminal history of persons who are seeking to serve as providers or subcontractors, and persons who are employed or are seeking employment by providers or subcontractors, in positions that place them in direct contact with clients when providing nonwitnessed direct mental or behavioral health services. These procedures shall include but not be limited to criminal history record checks in accordance with section 846-2.7.

(b) Except as otherwise specified, any person who is seeking to serve as a provider or subcontractor, and any person who is employed or is seeking employment by a provider or subcontractor, in a position that necessitates nonwitnessed direct contact with clients when providing nonwitnessed direct mental or behavioral health services shall:

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

(2) Provide to the department written consent for the department to obtain criminal history record information for verification.

Information obtained pursuant to subsection (a) and this subsection shall be used exclusively by the department for purposes of determining whether a person is suitable for working in a position that necessitates nonwitnessed direct contact with clients when providing nonwitnessed direct mental or behavioral health services. All such decisions shall be subject to federal laws and regulations currently or hereafter in effect.

(c) The department may refuse to contract, subcontract, or use any provider or subcontractor if the person has been convicted of an offense for which incarceration is a sentencing option, and if the department 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 clients receiving nonwitnessed direct mental or behavioral health services. Such refusal may occur only after appropriate investigation, notification of results and planned action, and opportunity to meet and rebut the finding, all of which need not be conducted in accordance with chapter 91.

(d) Nothing in this section shall prohibit criminal history record checks being conducted on employees of all providers and subcontractors.

(e) Notwithstanding any other law to the contrary, the department of education shall be exempt from section 831-3.1 for purposes of this section and shall not be required to conduct investigations, notifications, or hearings under this section in accordance with chapter 91.

(f) For purposes of this section:

"Provider" means any organization or individual that intends to enter into a contract with or is currently contracted by the department to provide direct mental or behavioral health services to the department’s eligible clients.

"Subcontractor" means any organization or individual that enters into a contract or agreement with a provider to provide direct mental or behavioral health services to the department’s eligible clients."

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 department of education on persons who are seeking to serve as providers or subcontractors, and persons who are employed or are seeking employment by providers or subcontractors, in positions that place them in direct contact with clients when providing nonwitnessed direct mental or behavioral health services;

[(4)] (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;

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

[(6)] (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;

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

[(8)] (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[]];

[(9)] (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[]];

[(10)] (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-E;

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

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

[(13)] (14) 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)] (15) The department of commerce and consumer affairs on applicants for private detective or private guard licensure as provided by section 463-9;

[(15)] (16) 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)] (17) 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)] (18) 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)] (19) Any other organization, entity, or the State, its branches, political subdivisions, or agencies as may be authorized by state law.

(c) The applicant or employee subject to a criminal [[]history[]] record check shall provide to the requesting agency:

(1) Consent to obtain the applicant's or employee's fingerprints and conduct the criminal history record check;

(2) Identifying information required by the Federal Bureau of Investigation which shall include but not be limited to name, date of birth, height, weight, eye color, hair color, gender, race, and place of birth; and

(3) A statement indicating whether the applicant or employee has ever been convicted of a crime."

SECTION 3. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 4. This Act shall take effect upon its approval.

INTRODUCED BY:

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