2012 -- H 7806

=======

LC01758

=======

STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2012

____________

A N A C T

RELATING TO STATE AFFAIRS AND GOVERNMENT

     Introduced By: Representatives Naughton, Martin, and Diaz

     Date Introduced: February 28, 2012

     Referred To: House Finance

It is enacted by the General Assembly as follows:

1-1

     SECTION 1. Title 42 of the General Laws entitled "STATE AFFAIRS AND

1-2

GOVERNMENT" is hereby amended by adding thereto the following chapter:

1-3

     CHAPTER 9.4

1-4

CRIMINAL BACKGROUND CHECK ACT

1-5

     42-9.4-1. Definitions. – As used in this chapter:

1-6

     (1) “Adult” means a person eighteen (18) years of age or older.

1-7

     (2) “Applicant” or “Direct Patient Access Applicant” means a person applying to be a

1-8

direct patient access employee at a covered facility or a person providing services under chapter

1-9

40-8.1.

1-10

     (3) “Attorney General” means the attorney general of the state of Rhode Island, or his or

1-11

her designee.

1-12

     (4) “Criminal Background Check” means a national criminal records check that shall

1-13

include fingerprints submitted to the federal bureau of investigation (FBI).

1-14

     (5) "Conviction" means, in addition to judgments of conviction entered by a court

1-15

subsequent to a finding of guilty or a plea of guilty, those instances where the defendant has

1-16

entered a plea of nolo contendere and has received a sentence of probation and those instances

1-17

where a defendant has entered into a deferred sentence agreement.

1-18

     (6) “Covered Facility” means:

1-19

     (i) A nursing facility; a home nursing care provider; a home care provider; or a hospice

1-20

service that is or is required to be licensed, registered or certified with the state pursuant to

2-1

chapter 23-17;

2-2

     (ii) An assisted living residence that is or is required to be licensed with the state pursuant

2-3

to chapter 23-17.4;

2-4

     (iii) A nursing services agency that is or is required to be licensed with the state pursuant

2-5

to chapter 23-17.7.1;

2-6

     (iv) Any facility or program licensed by the department of behavioral healthcare,

2-7

developmental disabilities and hospitals pursuant to chapter 40.1-24;

2-8

     (v) Any facility or program operated by the department of behavioral healthcare,

2-9

developmental disabilities and hospitals; and

2-10

     (vi) Any other long-term care facility or provider.

2-11

     (7) “Day(s)” means calendar days.

2-12

     (8) “Department” means the Rhode Island department of attorney general.

2-13

     (9) “BCI” means the bureau of criminal identification of the department of attorney

2-14

general.

2-15

     (10) “Direct Patient Access Employee” means:

2-16

     (i) A person who has access to a patient or resident of a covered facility through

2-17

employment or through a contract with such covered facility and has duties that involve or may

2-18

involve one-on-one contact with a patient or resident of the covered facility; or

2-19

     (ii) A person who has access to the belongings or funds of a patient or resident of a

2-20

covered facility through employment or through a contract with such covered facility.

2-21

     (iii) These provisions do not include volunteers unless the volunteer has duties that are

2-22

equivalent to the duties of a direct patient access employee and those duties involve or may

2-23

involve one-on-one contact with a patient or resident of the covered facility.

2-24

     (11) “EOHHS” means the Rhode Island executive office of health and human services, or

2-25

its designee.

2-26

     (12) “Livescan Vendor” means an entity whose equipment has been certified by the

2-27

department to collect an individual’s demographics and inkless fingerprints and, in a manner

2-28

prescribed by the department, electronically transmit the fingerprints and a daily file of required

2-29

data to the department. The department shall negotiate a contract with one or more vendors that

2-30

effectively demonstrate that the vendor has demonstrated sufficient experience transmitting

2-31

fingerprints electronically to the department and that the vendor can successfully transmit the

2-32

required data in a manner prescribed by the department.

2-33

     (13) “Long-term Care Facility or Provider” means a facility or provider that receives

2-34

payment for services under title XVIII or XIX of the Social Security Act and is:

3-1

     (i) A long-term care hospital (as described in section 1886(d)(1)(B)(iv) of the Social

3-2

Security Act (42 U.S.C. 1395ww(d)(1)(B)(iv));

3-3

     (ii) A provider of personal care services as defined in the state’s waiver under Title XIX

3-4

of the Social Security Act relating to the provision of home and community-based services;

3-5

     (iii) A provider of adult day care; or

3-6

     (iv) An intermediate care facility for the mentally retarded (as defined in section 1905(d)

3-7

of the Social Security Act (42 U.S.C. 1396d(d)).

3-8

     (14) “Provisionally employed” means that the applicant is employed by a covered facility

3-9

or provides services as provided in chapter 40-8.1, during a period of time after the applicant’s

3-10

fingerprints have been submitted for the processing of a criminal background check, but before

3-11

the results of the criminal background check have been received. During this time, the applicant

3-12

shall not have supervisory or disciplinary power or routine contact with patients or residents

3-13

without the presence of others.

3-14

     42-9.4-2. Criminal Background Check. – (a) Any adult person seeking employment in

3-15

any covered facility as a direct patient access employee or who provides services as a direct

3-16

patient access employee as provided in chapter 40-8.1, whether compensated or not, shall

3-17

undergo a criminal background check to be processed prior to employment or providing such

3-18

services, except as otherwise provided in this section. All persons who, as of January 1, 2013, are

3-19

already employed by a covered facility and all persons who, as of such date, already provide

3-20

services under chapter 40-8.1 shall be exempted from the requirements of this section for

3-21

purposes of their current employment only.

3-22

     (b) The applicant shall apply to the BCI for a criminal background check. The BCI may

3-23

utilize a Livescan vendor as a designee to fulfill the requirements of this chapter.

3-24

     (c) If the results of the criminal background check have not been received within seven

3-25

(7) days, upon verification that an applicant has submitted his or her fingerprints for the

3-26

processing of a criminal background check, the applicant may be provisionally employed by the

3-27

covered facility or provide services under chapter 40-8.1 until the results of the criminal

3-28

background check are completed, but in no case may this exceed sixty (60) days.

3-29

     (d) Upon the discovery of any disqualifying information, as defined in section 42-9.4-3

3-30

and in accordance with the rules and regulations promulgated by the department, the BCI shall

3-31

inform the applicant of the nature of the disqualifying information; and, without disclosing the

3-32

nature of the disqualifying information, shall notify the covered facility that disqualifying

3-33

information has been discovered. The disqualification notice shall include notice of the

3-34

applicant’s right to appeal the denial or termination of employment and that the applicant may

4-1

request an appeal of denial or termination of employment as provided in section 42-9.4-4. If a

4-2

covered facility provisionally employed an applicant as provided in subsection (c), upon the

4-3

covered facility’s receipt of the disqualification notice, the covered facility must terminate the

4-4

applicant’s employment within fourteen (14) days, unless the applicant requests an appeal in

4-5

accordance with section 42-9.4-4 and, in doing so, requests to remain provisionally employed

4-6

while the appeal is reviewed. Upon receipt of an applicant’s request to remain provisionally

4-7

employed during the appeal process, the department or the EOHHS shall inform the relevant

4-8

covered facility that the disqualified individual has requested an appeal and advise the covered

4-9

facility that the individual may remain provisionally employed until the date the covered facility

4-10

receives the department’s or EOHHS’s written decision or until the applicant has been employed

4-11

for sixty (60) days, whichever date is earlier. In those situations in which no disqualifying

4-12

information has been found, the BCI shall inform the applicant, the covered facility, and EOHHS

4-13

of this fact.

4-14

     (e) The covered facility shall initiate a criminal background check on all direct patient

4-15

access applicants, the results of which will be maintained by the BCI. Failure to initiate criminal

4-16

background checks on any prospective direct patient access employee would be grounds to

4-17

revoke the license or registration of the covered facility. The covered facility shall maintain on

4-18

file, subject to inspection by the EOHHS, evidence that criminal background checks have been

4-19

initiated on all direct patient access employees employed by or performing services at or for the

4-20

covered facility after the date specified in this subsection, and the results of such checks. Failure

4-21

to maintain that evidence would be grounds to revoke the license or registration of the covered

4-22

facility. The date specified in this subsection is either:

4-23

     (1) October 1, 1991, if the covered facility is a nursing facility, a home nursing care

4-24

provider, a home care provider, or an assisted living residence; or

4-25

     (2) January 1, 2013, if the covered facility is any other type of facility, program, or

4-26

provider.

4-27

     (f) It shall be the responsibility of the applicant to pay for the criminal background check

4-28

fees. The fees shall be established by rules and regulations promulgated pursuant to section 42-

4-29

9.4-9 of this chapter.

4-30

     42-9.4-3. Disqualifying information. – (a) Information produced by a criminal

4-31

background check pertaining to a conviction for the following crimes will disqualify the applicant

4-32

from employment:

4-33

     (1) The following offenses are considered level one offenses: Murder, manslaughter, first

4-34

degree sexual assault, second degree sexual assault, assault on persons sixty (60) years of age or

5-1

older, assault with intent to commit specified felonies (murder, robbery, rape, burglary, or the

5-2

abominable and detestable crime against nature), felony assault, patient abuse, neglect or

5-3

mistreatment of patients, burglary, first degree arson, robbery, any felony involving the illegal

5-4

manufacture, sale or delivery of a controlled substance, or possession with intent to manufacture,

5-5

sell or deliver a controlled substance, felony obtaining money under false pretenses, felony

5-6

embezzlement, abuse, neglect and/or exploitation of adults with severe impairments, exploitation

5-7

of elders, felony larceny, or felony banking law violations, or a crime under section 1128(a) of

5-8

the Social Security Act (42 U.S.C. 1320a-7(a)).

5-9

     (2) The following offenses are considered level two offenses: Felony drug possession and

5-10

third degree sexual assault.

5-11

     42-9.4-4. Appeal of Denial or Termination of Employment. – (a) An applicant who

5-12

has been denied or terminated from employment due to receiving a disqualification notice may

5-13

appeal such denial or termination. The appeal procedure shall be dependent on whether the nature

5-14

of the disqualification is a level one or a level two offense.

5-15

     (b) If the applicant’s disqualification is based on a level one offense, the appeal shall be

5-16

limited only to the accuracy of the information provided in the criminal background check.

5-17

     (1) The applicant must submit a request for appeal in writing to the department within

5-18

(14) days of the applicant’s receipt of the disqualification notice provided in subsection 42-9.4-

5-19

2(d). In the request, the applicant must include a copy of his or her disqualification notice that

5-20

identifies the specific disqualifying offense and provide evidence that he or she was not convicted

5-21

of the disqualifying offense.

5-22

     (2) Within thirty (30) days of receipt of the applicant’s request, the department shall

5-23

review the applicant’s submitted materials and conduct a hearing for the applicant to demonstrate

5-24

that the information contained in the disqualification notice was inaccurate.

5-25

     (3) The department must deny the appeal if the applicant failed to submit a timely request

5-26

for appeal or if the applicant fails to demonstrate that the information contained in the

5-27

disqualification notice was inaccurate. Upon denial, the department shall notify, in writing, the

5-28

applicant, the covered facility, and EOHHS that the disqualification was not overturned due to the

5-29

information in the criminal background check being found accurate or because the applicant

5-30

failed to submit a timely request.

5-31

     (4) The department shall overturn the disqualification if it finds that the information

5-32

provided in the criminal background check is inaccurate. If an applicant’s disqualification is

5-33

overturned, the department shall notify the applicant, the covered facility, and EOHHS of the

5-34

decision in writing. In such decision, the department must inform the applicant, the covered

6-1

facility, and EOHHS that the information relied upon to disqualify the applicant was inaccurate.

6-2

     (c) If the applicant’s disqualification is based on a level two offense, the appeal shall

6-3

consider whether the disqualification should be overturned due to any or some combination of the

6-4

following factors: the passage of time since the disqualifying conviction, extenuating

6-5

circumstances surrounding the disqualifying conviction, the applicant’s demonstration of

6-6

rehabilitation and the relevancy of the disqualifying information to the employment applied for.

6-7

     (1) The applicant must submit the request for appeal in writing to the EOHHS within

6-8

fourteen (14) days of the applicant’s receipt of the disqualification notice provided in subsection

6-9

42-9.4-2(d). In the request, the applicant must include a copy of his or her disqualification notice

6-10

that identifies the specific disqualifying offense and provide evidence that supports the factors in

6-11

subsection (c).

6-12

     (2) Within thirty (30) days of receipt of the applicant’s request, the EOHHS shall review

6-13

the applicant’s submitted materials and conduct a hearing for the applicant to demonstrate that the

6-14

disqualification should be overturned due to any or some combination of the factors in subsection

6-15

(c).

6-16

     (3) Upon consideration of the factors in subsection (c), if EOHHS determines that the

6-17

applicant’s disqualification should not be overturned or the applicant failed to submit a timely

6-18

request for appeal, the EOHHS must deny the appeal. Upon denial, the EOHHS shall notify, in

6-19

writing, the applicant, the covered facility, and the department that the disqualification was not

6-20

overturned and the basis for the denial.

6-21

     (4) The EOHHS shall grant the appeal if it finds that the information contained in the

6-22

applicant’s criminal background check and applicant’s presentation of pertinent factors in

6-23

subsection (c) warrant that the applicant’s disqualification should be overturned. If an applicant’s

6-24

disqualification is overturned, the EOHHS shall notify the applicant, the covered facility, and the

6-25

department of the decision in writing and state the specific findings thereto.

6-26

     42-9.4-5. Automated Fingerprint Identification System Database. - The department

6-27

may establish and maintain an automated fingerprint identification system database that would

6-28

allow the department to store and maintain all fingerprints submitted under this chapter and

6-29

would provide for an automatic notification if and when a subsequent criminal arrest fingerprint

6-30

card submitted into the system matches a set of fingerprints previously submitted under the

6-31

chapter. If the aforementioned arrest results in a conviction, the department shall immediately

6-32

notify each covered facility with which that individual is associated. The information in the

6-33

database established under this section is confidential and is not subject to disclosure under the

6-34

access to public records act, chapter 2 of title 38 of the general laws.

7-1

     42-9.4-6. Electronic Web-based Registry System. – The department or EOHHS shall

7-2

maintain an electronic web-based system to assist covered facilities required to check relevant

7-3

registries and conduct criminal background checks of direct patient access applicants and to

7-4

provide for an automated notice to those covered facilities for those persons inputted in the

7-5

system who, since the initial criminal background check, have been convicted of a disqualifying

7-6

offense or have been the subject of a substantiated finding of abuse, neglect or misappropriation

7-7

of property. The department or EOHHS may charge a covered facility a one-time set up fee of up

7-8

to one hundred dollars ($100) for access to the electronic web-based system under this section.

7-9

     42-9.4-7. Immunity from liability. – The department, the EOHHS, and a covered

7-10

facility who disqualifies an applicant from employment or continued employment on the basis of

7-11

a disqualification notice as described in subsection 42-9.4-2(d) or of a criminal background check

7-12

relating to disqualifying information shall not be liable for civil damages or subject to any claim,

7-13

demand, cause of action, or proceeding of any nature as a result of the disqualification.

7-14

     42-9.4-8. Rules and regulations. – The department and the EOHHS is authorized to

7-15

promulgate rules and regulations to carry out the intent of this chapter.

7-16

     SECTION 2. Section 23-17-34 of the General Laws in Chapter 23-17 entitled "Licensing

7-17

of Health Care Facilities" is hereby amended to read as follows:

7-18

     23-17-34. Criminal records review – Nursing facilities – Home nursing care

7-19

providers and home care providers. – (a) Any adult person seeking employment as a direct

7-20

patient access employee, whether compensated or not, in a nursing facility, a home nursing care

7-21

provider, or a home care provider which is or is required to be licensed, registered or certified

7-22

with the department of health if that employment involves routine contact with a patient or

7-23

resident without the presence of other employees, shall undergo a criminal background check as

7-24

provided in chapter 42-9.4 to be initiated prior to or within one week of employment. All

7-25

employees hired prior to the enactment of this section shall be exempted from the requirements of

7-26

this section.

7-27

     (b) The director of the department of health may by rule identify those positions requiring

7-28

criminal background checks. The identified employee, through the employer, shall apply to the

7-29

bureau of criminal identification of the state police or local police department for a statewide

7-30

criminal records check. Fingerprinting shall not be required. Upon the discovery of any

7-31

disqualifying information as defined in § 23-17-37 and in accordance with the rule promulgated

7-32

by the director of health, the bureau of criminal identification of the state police or the local

7-33

police department will inform the applicant, in writing, of the nature of the disqualifying

7-34

information; and, without disclosing the nature of the disqualifying information, will notify the

8-1

employer, in writing, that disqualifying information has been discovered.

8-2

     (c) An employee against whom disqualifying information has been found may request

8-3

that a copy of the criminal background report be sent to the employer who shall make a judgment

8-4

regarding the continued employment of the employee.

8-5

     (d) In those situations in which no disqualifying information has been found, the bureau

8-6

of criminal identification of the state police or the local police shall inform the applicant and the

8-7

employer, in writing, of this fact.

8-8

     (c)(e) The employer shall maintain on file, subject to inspection by the department of

8-9

health, evidence that criminal records checks have been initiated on all employees seeking

8-10

employment after October 1, 1991, and the results of the checks. Failure to maintain that evidence

8-11

would be grounds to revoke the license or registration of the employer.

8-12

     (f) It shall be the responsibility of the bureau of criminal identification of the state police

8-13

or the local police department to conduct the criminal records check to the applicant for

8-14

employment without charge to either the employee or the employer.

8-15

     SECTION 3. Sections 23-17-37 and 23-17-39 of the General Laws in Chapter 23-17

8-16

entitled "Licensing of Health Care Facilities" are hereby repealed.

8-17

     23-17-37. Disqualifying information. -- (a) Information produced by a criminal records

8-18

review pertaining to conviction, for the following crimes will result in a letter to the employee

8-19

and employer disqualifying the applicant from employment: murder, voluntary manslaughter,

8-20

involuntary manslaughter, first degree sexual assault, second degree sexual assault, third degree

8-21

sexual assault, assault on persons sixty (60) years of age or older, assault with intent to commit

8-22

specified felonies (murder, robbery, rape, burglary, or the abominable and detestable crime

8-23

against nature) felony assault, patient abuse, neglect or mistreatment of patients, burglary, first

8-24

degree arson, robbery, felony drug offenses, larceny, or felony banking law violations. An

8-25

employee against whom disqualifying information has been found may request that a copy of the

8-26

criminal background report be sent to the employer who shall make a judgment regarding the

8-27

continued employment of the employee.

8-28

      (b) For purposes of this section, "conviction" means, in addition to judgments of

8-29

conviction entered by a court subsequent to a finding of guilty or a plea of guilty, those instances

8-30

where the defendant has entered a plea of nolo contendere and has received a sentence of

8-31

probation and those instances where a defendant has entered into a deferred sentence agreement

8-32

with the attorney general.

8-33

     23-17-39. Immunity from liability. -- No employer who disqualifies an individual from

8-34

employment or continued employment within thirty (30) days of receipt of a letter containing

9-1

disqualifying information as defined in section 23-17-37 or of a criminal background report

9-2

relating to the individual shall be liable for civil damages or subject to any claim, demand, cause

9-3

of action or proceeding of any nature as a result of the disqualification.

9-4

     SECTION 4. Section 23-17.7.1-17 of the General Laws in Chapter 23-17.7.1 entitled

9-5

"Licensing of Nursing Service Agencies" is hereby amended to read as follows:

9-6

     23-17.7.1-17. Criminal records review. – (a) Any adult person seeking employment as

9-7

a direct patient access employee, whether compensated or not, in a facility which is or is required

9-8

to be licensed or registered with the department of health if that employment involves routine

9-9

contact with a patient or resident without the presence of other employees, shall undergo a

9-10

criminal background check as provided in chapter 42-9.4., which shall be initiated prior to, or

9-11

within one week of, employment. All employees hired prior to the enactment of this section shall

9-12

be exempted from the requirements of this section.

9-13

     (b) The director of the department of health may, by rule, identify those positions

9-14

requiring criminal background checks. The employee, through the employer, shall apply to the

9-15

bureau of criminal identification of the state police or local police department for a statewide

9-16

criminal records check. Fingerprinting shall not be required. Upon the discovery of any

9-17

disqualifying information as defined in § 23-17.7.1-20 and in accordance with the rule

9-18

promulgated by the director of the department of health, the bureau of criminal identification of

9-19

the state police or the local police department will inform the applicant, in writing, of the nature

9-20

of the disqualifying information; and, without disclosing the nature of the disqualifying

9-21

information, will notify the employer, in writing, that disqualifying information has been

9-22

discovered.

9-23

     (c) An employee against whom disqualifying information under § 23-17.7.1-20(b) has

9-24

been found may request that a copy of the criminal background report be sent to the employer

9-25

who shall make a judgment regarding the continued employment of the employee.

9-26

     (d) In those situations in which no disqualifying information has been found, the bureau

9-27

of criminal identification of the state police or the local police shall inform the applicant and the

9-28

employer, in writing, of this fact.

9-29

     (e) The employer shall maintain on file, subject to inspection by the department of health,

9-30

evidence that criminal records checks have been initiated on all employees. Failure to maintain

9-31

that evidence would be grounds to revoke the license or registration of the employer.

9-32

     (f) It shall be the responsibility of the bureau of criminal identification of the state police

9-33

or the local police department to conduct the criminal records check to the applicant for

9-34

employment without charge to either the employee or the employer.

10-1

     SECTION 5. Sections 23-17.7.1-18, 23-17.7.1-20 and 23-17.7.1-21 of the General Laws

10-2

in Chapter 23-17.7.1 entitled "Licensing of Nursing Service Agencies" are hereby repealed.

10-3

     23-17.7.1-18. Prior criminal records checks. -- If an applicant for employment has

10-4

undergone a statewide criminal records check within eighteen (18) months of an application for

10-5

employment, then an employer may request from the bureau of criminal identification or local

10-6

police a letter indicating if any disqualifying information was discovered. The bureau of criminal

10-7

identification will respond without disclosing the nature of the disqualifying information. The

10-8

letter may be maintained on file to satisfy the requirements of this chapter.

10-9

     23-17.7.1-20. Disqualifying information. -- (a) Information produced by a criminal

10-10

records review pertaining to conviction, for the following crimes will result in a letter to the

10-11

employee and employer disqualifying the applicant from the employment: murder, voluntary

10-12

manslaughter, involuntary manslaughter, first degree sexual assault, second degree sexual assault,

10-13

third degree sexual assault, assault on persons sixty (60) years of age or older, assault with intent

10-14

to commit specified felonies (murder, robbery, rape, burglary, or the abominable and detestable

10-15

crime against nature), felony assault, patient abuse, neglect or mistreatment of patients, first

10-16

degree arson, robbery, felony drug offenses, larceny, or felony banking law violations.

10-17

      (b) Information produced by a criminal records review pertaining to convictions for

10-18

crimes other than those listed in subsection (a) of this section shall entitle, but not obligate the

10-19

employer to decline to hire the applicant. An employee against whom conviction information

10-20

related to this subsection has been found may request that a copy of the criminal background

10-21

report be sent to the employer who shall make a determination regarding the continued

10-22

employment of the employee.

10-23

      (c) For purposes of this section "conviction" means, in addition to judgments of

10-24

conviction entered by a court subsequent to a finding of guilty or a plea of guilty, those instances

10-25

where the defendant has entered a plea of nolo contendere and has received a sentence of

10-26

probation and those instances where a defendant has entered into a deferred sentence agreement

10-27

with the attorney general.

10-28

     23-17.7.1-21. Immunity from liability. -- No employer who disqualifies an individual

10-29

from employment or continued employment within thirty (30) days of receipt of a letter

10-30

containing disqualifying information as defined in section 23-17.7.1-20 or of a criminal

10-31

background report relating to that information shall be liable for civil damages or subject to any

10-32

claim, cause of action, or proceeding of any nature as a result of the disqualification.

10-33

     SECTION 6. Section 23-17.4-27 of the General Laws in Chapter 23-17.4 entitled

10-34

"Assisted Living Residence Licensing Act" is hereby amended to read as follows:

11-1

     23-17.4-27. Criminal records review. – (a) Any adult person seeking employment as a

11-2

direct patient access employee, whether compensated or not, in any assisted living residence

11-3

licensed under this act and having routine contact with a resident or having access to a resident's

11-4

belongings or funds shall undergo a criminal background check as provided in chapter 42-9.4.to

11-5

be processed prior to or within one week of employment. All employees hired prior to the

11-6

enactment of this section shall be exempted from the requirements of this section.

11-7

     (b) The director of the department of health may by rule identify those positions requiring

11-8

criminal background checks. The employee, through the employer, shall apply to the bureau of

11-9

criminal identification of the state police or local police department for a statewide criminal

11-10

records check. Fingerprinting shall not be required. Upon the discovery of any disqualifying

11-11

information as defined in § 23-17.4-30 and in accordance with the rule promulgated by the

11-12

director of health, the bureau of criminal identification of the state police or the local police

11-13

department will inform the applicant in writing of the nature of the disqualifying information;

11-14

and, without disclosing the nature of the disqualifying information, will notify the employer in

11-15

writing that disqualifying information has been discovered.

11-16

     (c) An employee against whom disqualifying information has been found may request

11-17

that a copy of the criminal background report be sent to the employer. The administrator shall

11-18

make a judgment regarding the continued employment of the employee.

11-19

     (d) In those situations in which no disqualifying information has been found, the bureau

11-20

of criminal identification (BCI) of the state police or the local police shall inform the applicant

11-21

and the employer in writing of this fact.

11-22

     (e) The employer shall maintain on file, subject to inspection by the department of health,

11-23

evidence that criminal records checks have been initiated on all employees seeking employment

11-24

after October 1, 1991, and the results of the checks. Failure to maintain that evidence would be

11-25

grounds to revoke the license or registration of the employer.

11-26

     (f) It shall be the responsibility of the bureau of criminal identification (BCI) of the state

11-27

police or the local police department to conduct the criminal records check to the applicant for

11-28

employment without charge to either the employee or employer.

11-29

     SECTION 7. Sections 23-17.4-28, 23-17.4-30 and 23-17.4-32 of the General Laws in

11-30

Chapter 23-17.4 entitled "Assisted Living Residence Licensing Act" are hereby repealed.

11-31

     23-17.4-28. Prior criminal records checks. -- If an applicant for employment has

11-32

undergone a statewide criminal records check within eighteen (18) months of an application for

11-33

employment, then an employer may request from the bureau of criminal identification or local

11-34

police a letter indicating if any disqualifying information was discovered. The bureau of criminal

12-1

identification will respond without disclosing the nature of the disqualifying information. The

12-2

letter may be maintained on file to satisfy the requirements of this chapter.

12-3

     23-17.4-30. Disqualifying information. -- (a) Information produced by a criminal

12-4

records review pertaining to conviction, for the following crimes will result in a letter to the

12-5

employee and employer disqualifying the applicant from employment: murder, voluntary

12-6

manslaughter, involuntary manslaughter, first degree sexual assault, second degree sexual assault,

12-7

third degree sexual assault, assault on persons sixty (60) years of age or older, assault with intent

12-8

to commit specified felonies (murder, robbery, rape, burglary, or the abominable and detestable

12-9

crime against nature) felony assault, patient abuse, neglect or mistreatment of patients, burglary,

12-10

first degree arson, robbery, felony drug offenses, larceny or felony banking law violations. An

12-11

employee against whom disqualifying information has been found may request that a copy of the

12-12

criminal background report be sent to the employer who shall make a judgment regarding the

12-13

continued employment of the employee.

12-14

      (b) For purposes of this section, "conviction" means, in addition to judgments of

12-15

conviction entered by a court subsequent to a finding of guilty or a plea of guilty, those instances

12-16

where the defendant has entered a plea of nolo contendere and has received a sentence of

12-17

probation and those instances where a defendant has entered into a deferred sentence agreement

12-18

with the attorney general.

12-19

     23-17.4-32. Immunity from liability. -- No employer who disqualifies an individual

12-20

from employment or continued employment within thirty (30) days of receipt of a letter

12-21

containing disqualifying information as defined in section 23-17.4-30 or of a criminal background

12-22

report relating to disqualifying information shall be liable for civil damages or subject to any

12-23

claim, demand, cause of action or proceeding of any nature as a result of the disqualification.

12-24

     SECTION 8. Section 40.1-25.1-3 of the General Laws in Chapter 40.1-25.1 entitled

12-25

"Employee Criminal Records Check" is hereby amended to read as follows:

12-26

     40.1-25.1-3. Criminal records check requirement. – (a) Any facility or program

12-27

licensed by the department pursuant to § 40.1-24-1 et seq. and any facility or program operated

12-28

by the department shall require all adult applicants for employment, as a direct patient access

12-29

employee, whether compensated or not, if that employment involves routine contact with

12-30

patients, residents or clients without the presence of other employees, to apply to the bureau of

12-31

criminal identification of the state police or the local police department for a nationwide criminal

12-32

records check for a criminal background check as provided in chapter 42-9.4. The check will

12-33

conform to the applicable federal standards, including the taking of fingerprints of the applicant.

13-34

     (b) If any disqualifying information is discovered with respect to the applicant, the bureau

13-35

of criminal identification of the state police or the local police department will inform the

13-36

employer, in writing, without disclosing the nature of the disqualifying information, that an item

13-37

of disqualifying nature has been discovered. In addition, the bureau of criminal identification of

13-38

the state police or the local police department will inform the applicant, in writing, of the nature

13-39

of the disqualifying information. An applicant against whom disqualifying information has been

13-40

found may request that a copy of the criminal background report be sent to the employer who

13-41

shall make a judgment regarding the employment of the applicant.

13-42

     (c) In those situations in which no disqualifying information has been found, the bureau

13-43

of criminal identification of the state police or the local police department shall inform both the

13-44

applicant and the employer of this fact.

13-45

     (d) The employer will maintain on file, subject to investigation by the department,

13-46

evidence that criminal records checks in accordance with this statute have been initiated on all

13-47

employees seeking employment after August 1, 2001 and the results of the checks. Failure to

13-48

maintain the evidence on file will be prima facie grounds to revoke the license or certification of

13-49

the operator of any facility or program licensed or certified by the department.

13-50

     (e) It shall be the responsibility of the bureau of criminal identification of the state police

13-51

or the local police department to conduct the national criminal records check for the applicant.

13-52

     SECTION 9. Sections 40.1-25.1-4 and 40.1-25.1-5 of the General Laws in Chapter 40.1-

13-53

25.1 entitled "Employee Criminal Records Check" are hereby repealed.

13-54

     40.1-25.1-4. Prior criminal records check. -- If an applicant has undergone a national

13-55

criminal records check within eighteen (18) months of an application for employment, then an

13-56

employer may request from the bureau of criminal identification of the state police or the local

13-57

police, a letter indicating if any disqualifying information was discovered. The bureau of criminal

13-58

identification of the state police or the local police department shall respond without disclosing

13-59

the nature of any disqualifying information. The letter shall be maintained on file to satisfy the

13-60

requirements of this chapter.

13-61

     40.1-25.1-5. Destruction of fingerprint records. -- At the conclusion of any background

13-62

check required by this chapter, the state police or the local police department will promptly

13-63

destroy the fingerprint card of the applicant.

13-64

     SECTION 10. The act shall take effect on January 1, 2013.

=======

LC01758

=======

EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N A C T

RELATING TO STATE AFFAIRS AND GOVERNMENT

***

14-1

      This act would create a new chapter entitled “Criminal Background Check Act” that

14-2

would provide for national background checks for all persons applying to be direct patient access

14-3

employees in a long-term care facility or provider, including, but not limited to, those facilities

14-4

licensed under chapters 23-17, 23-17.4, 23-17.7.1 and 40.1-24.

14-5

     This act would take effect on January 1, 2013.

=======

LC01758

=======