Report Title:

Mental Health

Description:

Allows the department of health to expand its capacity to obtain verifiable information regarding the criminal history of potential employees and contract providers to both mental health divisions. (SD2)

THE SENATE

S.B. NO.

1362

TWENTY-SECOND LEGISLATURE, 2004

S.D. 2

STATE OF HAWAII

 


 

A BILL FOR AN ACT

 

RELATING TO MENTAL HEALTH.

 

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

SECTION 1. Section 321-171.5, Hawaii Revised Statutes, is amended as follows:

1. By amending subsections (a), (b), and (c) to read:

"(a) The department of health shall develop procedures for obtaining verifiable information regarding the criminal history of persons who are seeking employment, or 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 of the department of health]. 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 seeks employment with the department of health, or who is employed or seeks employment with a provider or subcontractor in a position that necessitates non-witnessed direct contact with clients when providing non-witnessed direct mental health services [on behalf of the child and adolescent mental health division], shall:

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

(2) Provide to the department of health 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 of health for purposes of determining whether a person is suitable for working in a position that necessitates non-witnessed direct contact with clients when providing non-witnessed direct mental health services [on behalf of the child and adolescent mental health division]. All such decisions shall be subject to federal laws and regulations currently or hereafter in effect.

(c) The department of health may refuse to employ or may terminate the employment of any employee or applicant for employment if the person has been convicted of an offense for which incarceration is a sentencing option, and if the department of health 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 non-witnessed direct mental health services. Such refusal or termination 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. Nothing in this subsection shall abrogate any applicable appeal rights under [chapters] chapter 76 or 89."

2. By amending the definition of "provider" in subsection (f) to read:

""Provider" means any organization or individual that intends to enter into a contract with or is currently contracted by the [child and adolescent mental health division of the] department of health to provide direct mental health services to the department's eligible clients."

SECTION 2. Section 378-2.5, Hawaii Revised Statutes, is amended by amending subsection (d) to read as follows:

"(d) Notwithstanding subsections (b) and (c), the requirement that inquiry into and consideration of a prospective employee's conviction record may take place only after the individual has received a conditional job offer, and the limitation to the most recent ten-year period, excluding the period of incarceration, shall not apply to employers who are expressly permitted to inquire into an individual's criminal history for employment purposes pursuant to any federal or state law other than subsection (a), including:

(1) The State or any of its branches, political subdivisions, or agencies pursuant to section 831-3.1 and section 78-2.7;

(2) The department of education pursuant to section 302A-601.5;

(3) The department of health with respect to employees, 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] pursuant to section 321-171.5;

(4) The judiciary pursuant to section 571-34;

(5) The counties pursuant to section 846-2.7;

(6) Armed security services pursuant to section 261-17(b);

(7) Providers of a developmental disabilities domiciliary home pursuant to section 333F-22;

(8) Private schools pursuant to section 378-3(8) and section 302C-1;

(9) Financial institutions in which deposits are insured by a federal agency having jurisdiction over the financial institution pursuant to section 378-3(9);

    (10) Detective agencies and security guard agencies pursuant to sections 463-6(b) and 463-8(b);

    (11) Employers in the business of insurance pursuant to section 431:2-201.3;

    (12) Employers of individuals or supervisors of individuals responsible for screening passengers or property under 49 U.S.C. 44901 or individuals with unescorted access to an aircraft of an air carrier or foreign carrier or in a secured area of an airport in the United States pursuant to 49 U.S.C. 44936(a);

    (13) The department of human services pursuant to section 352-5.5;

    (14) The public library system pursuant to section 302A-601.5;

    (15) The department of public safety pursuant to section 353C-5;

    (16) The board of directors of a cooperative housing corporation or the manager of a cooperative housing project pursuant to section 421I-12; and

    (17) The board of directors of an association of apartment owners, or the manager of a condominium project pursuant to section 514A-82.1."

SECTION 3. 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 by 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) Any other organization, entity, or the State, its branches, political subdivisions, or agencies as may be authorized by state law."

SECTION 4. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 5. This Act shall take effect on approval.