Report Title:

Criminal History Record Checks; Adult Care Facilities

 

Description:

Requires the Department of Health to conduct criminal history record checks of operators and employees of skilled nursing facilities, intermediate care facilities, adult residential care homes, and assisted living facilities. Requires the Department of Human Services to conduct checks on service providers in adult care facilities serving frail, elderly, disabled, or dependent adults. (HB925 HD3)

HOUSE OF REPRESENTATIVES

H.B. NO.

925

TWENTY-SECOND LEGISLATURE, 2003

H.D. 3

STATE OF HAWAII

 


 

A BILL FOR AN ACT

 

RELATING TO ELDER ABUSE.

 

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

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

"321-   Criminal history record checks. (a) The department shall adopt rules pursuant to chapter 91 to assure the reputable and responsible character of an applicant to operate a skilled nursing facility, intermediate care facility, adult residential care home, and assisted living facility and their current or prospective employees who direct care or services to frail, elderly, or disabled adult residents of the facility that are under the licensing authority of the department, which shall include but not be limited to criminal history record checks in accordance with section 846- .

(b) An applicant to operate a skilled nursing facility, intermediate care facility, adult residential care home, and assisted living facility license and all current and prospective employees of the applicant shall be subject to criminal history record checks in accordance with section 846- , and shall consent to the department to obtain criminal history record information for verification that includes permission to be fingerprinted for the purpose of the Federal Bureau of Investigation and state criminal history record check. New employees of the skilled nursing facility, intermediate care facility, adult residential care home, and assisted living facility shall be fingerprinted within five working days of employment, for the purpose of complying with the criminal history record check requirement.

(c) The department is authorized to obtain criminal history record information through the Federal Bureau of Investigation and the Hawaii criminal justice data center on all operators, their employees, and new employees of a skilled nursing facility, intermediate care facility, adult residential care home, and assisted living facility subject to licensure pursuant to this section.

(d) The department shall make a name inquiry into the criminal history records of operators and employees of a skilled nursing facility, intermediate care facility, adult residential care home, and assisted living facility for each of the first two years of licensure of a skilled nursing facility, intermediate care facility, adult residential care home, and assisted living facility, and biennially thereafter depending on the licensure status of the skilled nursing facility, intermediate care facility, adult residential care home, and assisted living facility.

(e) The department may revoke a current license or certification or deny an application for a license or certification under rules adopted pursuant to chapter 91 if the applicant, operator, or their employees refuse to submit their consent for the department to conduct a criminal history record check or obtain criminal history record information for verification, or to be fingerprinted, or has been convicted of a crime other than a minor traffic violation involving a fine of $50 or less, or if the department finds that the criminal history record of the applicant, operator, or its employees may pose a risk to the health, safety, or well-being of residents of the skilled nursing facility, intermediate care facility, adult residential care home, and assisted living facility."

SECTION 2. Chapter 346, Hawaii Revised Statutes, is amended by adding a new section to part IV to be appropriately designated and to read as follows:

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

(1) Licensed adult day care center operators, employees, new employees, and adult volunteers;

(2) Purchase of service contracted service providers;

(3) Senior companion program and respite companion program participants; and

(4) Medicaid waiver program contracted service providers. (b) Individuals identified under subsection (a) shall:

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

(2) Be subject to adult abuse perpetrator checks, if the individual has direct contact with a frail, elderly, disabled, or dependent adult receiving services;

(3) Provide consent to the department to conduct a criminal history record check, an adult abuse perpetrator record check, and to obtain other criminal history record information for verification;

(4) Provide a sworn statement indicating whether or not the person has ever been convicted of a crime, or determined to be a perpetrator of adult abuse; and

(5) Provide permission to be fingerprinted for the purpose of the Federal Bureau of Investigation and state criminal history record check.

New 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 in accordance with section 846- , and adult abuse perpetrator record 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 abuse perpetrator record annually or biennially thereafter.

(d) The department may implement appropriate action if an individual identified under subsection (a) has a conviction for a crime or is a perpetrator of adult abuse as defined in section 346-222 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) Subcontractors, their employees, and new employees of medicaid waiver program or purchase of service contracted service providers identified under subsection (a)(2) and (4) shall:

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

(2) Be subject to adult abuse perpetrator checks, if the individual has direct contact with a dependent adult receiving services;

(3) Provide consent to the medicaid waiver program or purchase of service contracted service providers to conduct a criminal history record check and an adult abuse perpetrator check through the department and to obtain other criminal history record information for verification;

(4) Provide a sworn statement indicating whether or not the person has even been convicted of a crime, or determined to be a perpetrator of adult abuse; and

(5) Provide permission to be fingerprinted for the purpose of the Federal Bureau of Investigation and state criminal history record check.

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

(f) Medicaid waiver program and purchase of service contracted service providers shall obtain criminal history record information through the Hawaii criminal justice data center on all subcontractors, their employees, and their new employees identified in subsection (e).

(g) The medicaid waiver program or purchase of service contracted service providers shall conduct a check of the Federal Bureau of Investigation and the state criminal record files, and adult abuse perpetrator record for the first two years when the individual identified in subsection (e) is required to have such checks, and a name inquiry into the state criminal history records, and adult abuse perpetrator record annually or biennially thereafter.

(h) The medicaid waiver program and purchase of service contracted service providers may take appropriate action if an individual identified under subsection (e) has a conviction for a crime or is a perpetrator of dependent adult abuse as defined in section 346-222 that the medicaid waiver program or purchase of service contracted service provider determines will pose a risk to the health, safety, or well-being of service recipients. Such action may include:

(1) Denying a subcontract for the provision of services to clients of the department; or

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

(i) As used in this section:

"Adult abuse perpetrator check" means a search to determine whether an individual is known to the department as a perpetrator of dependent adult 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.

"Criminal history record check" includes a search for an individual's criminal history by means of a search of the individual's fingerprints in the Federal Bureau of Investigation and state criminal history files."

SECTION 3. There is appropriated out of the state criminal history record improvement revolving fund the sum of $1 or so much thereof as may be necessary for fiscal year 2003-2004 to effectuate the purposes of this Act.

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

SECTION 4. If any provision of this Act, or the application thereof to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of the Act, which can be given effect without the invalid provision or application, and to this end the provisions of this Act are severable.

SECTION 5. New statutory material is underscored.

SECTION 6. This Act shall take effect upon its approval; provided that section 3 takes effect on July 1, 2003.