2013 -- S 0655

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LC01727

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STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2013

____________

A N A C T

RELATING TO BUSINESS AND PROFESSIONS - CRIMINAL RECORD BACKGROUND

CHECKS

     Introduced By: Senators Miller, Jabour, Nesselbush, Metts, and Archambault

     Date Introduced: March 06, 2013

     Referred To: Senate Judiciary

It is enacted by the General Assembly as follows:

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     SECTION 1. Section 5-34-43 of the General Laws in Chapter 5-34 entitled "Nurses" is

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hereby amended to read as follows:

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     5-34-43. Criminal records review. -- (a) Notwithstanding any provision of law to the

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contrary contained in any general or public law, rule or regulation, any person seeking a license to

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practice under this chapter, or who is previously licensed and authorized to practice under this

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chapter and is seeking employment, shall undergo a federal and statewide criminal background

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check (BCI), which shall be processed prior to receiving a license to practice or to enter into

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employment.

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      (b) The applicant shall apply to the bureau of criminal identification for a national

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criminal records check that shall include fingerprints submitted to the federal bureau of

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investigation. Upon the discovery of any disqualifying information, the bureau of criminal

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

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

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agency or the potential employer in writing that disqualifying information has been discovered.

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      (c) The applicant against whom disqualifying information has been found, may request

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that a copy of the criminal background report be sent to the licensing agency or the potential

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employer. The licensing agency or the potential employer shall make a judgment regarding the

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issuing of a license.

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

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of criminal identification shall inform the applicant and the licensing agency or the potential

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employer in writing of this fact.

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      (e) It shall be the responsibility of the applicant to pay for the criminal records check.

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     The criminal records check shall be provided to the applicant without charge.

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     (f) For the purposes of this section, "disqualifying information" means those offenses

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listed in sections 11-37-8.1, 11-37-8.3 and 23-17-37.

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     (g) At the conclusion of the criminal background check required by this section, the

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attorney general, the state police, or local police department shall promptly destroy the fingerprint

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record of the applicant obtained pursuant to this section.

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     SECTION 2. Section 16-2-18.1 of the General Laws in Chapter 16-2 entitled "School

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Committees and Superintendents" is hereby amended to read as follows:

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     16-2-18.1. Criminal records review. -- (a) Any person seeking employment with a

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private school or public school department who has not previously been employed by a private

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school or public school department in Rhode Island during the past twelve (12) months, as well as

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any person who seeks to participate in any mentoring program whereby the individual shall be

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working with a student or students as a mentor or in a mentoring situation, shall undergo a

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national and state criminal background check to be initiated prior to or within one week of

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employment after receiving a conditional offer of employment; provided, however, that

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employees hired prior to August 1, 2001 and or who have been continuously employed by a

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public school department in Rhode Island during the past twelve (12) months shall be exempted

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from the requirements of this section and section 16-2-18.2.

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      (b) The applicant shall apply to the bureau of criminal identification (BCI), department

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of attorney general, state police or local police department where they reside, for a national and

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state criminal records check. Fingerprinting shall be required. Upon the discovery of any

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disqualifying information, the bureau of criminal identification, state police or local police

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

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

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writing that disqualifying information has been discovered.

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

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

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regarding the employment of the employee.

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

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

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the employer in writing of this fact.

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      (e) For purposes of this section, "disqualifying information" means those offenses listed

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in section 23-17-37, and those offenses listed in sections 11-37-8.1 and 11-37-8.3.

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

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elementary and secondary education, evidence that criminal records checks have been initiated on

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all employees seeking employment subsequent to July 13, 1998, and the results of the checks.

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The applicant shall be responsible for the costs of the national and state criminal records check.

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The criminal records check shall be provided to the applicant without charge.

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      (g) At the conclusion of the criminal background check required in this section, the

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attorney general, state police or local police department shall promptly destroy the fingerprint

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record of the applicant obtained pursuant to this chapter.

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     SECTION 3. Sections 16-48.1-5 and 16-48.1-8 of the General Laws in Chapter 16-48.1

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entitled "Certification of Personnel Providing Educational Services to Very Young Children" are

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hereby amended to read as follows:

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     16-48.1-5. Criminal records check -- Employee. -- Any person seeking employment, if

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the employment involves supervisory or disciplinary power over a child or children or involves

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routine contact with a child or children without the presence of other employees, in any facility

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covered under section 16-48-1 shall, after acceptance by the employer of the affidavit required by

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section 16-48.1-3, apply to the Rhode Island bureau of criminal identification for a nationwide

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criminal records check. The check will conform to applicable federal standards including the

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taking of fingerprints to identify the applicant and any expenses associated with providing the

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criminal records check shall be paid by the applicant and/or requesting agency. Upon the

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discovery of any disqualifying information as defined in accordance with the rule promulgated by

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the commissioner, the Rhode Island bureau of criminal identification will inform the applicant, in

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writing, of the nature of the disqualifying information. In addition, the Rhode Island bureau of

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criminal identification will inform the employer, in writing, without disclosing the nature of the

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disqualifying information, that an item of disqualifying information has been discovered. An

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

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

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continued employment of the applicant. In those situations in which no disqualifying information

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has been found, the Rhode Island bureau of criminal identification will inform both the applicant

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and the employer, in writing, of this fact. The employer will maintain on file, subject to

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inspection by the commissioner, evidence that the criminal records checks have been initiated on

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all employees seeking employment after August 1, 1985, and the results of the checks. Failure to

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

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the operator of the facility. It will be the responsibility of the Rhode Island bureau of criminal

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identification to conduct the nationwide criminal records check pursuant to this section. The

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nationwide criminal records check will be provided to the applicant for employment without

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charge to the applicant and without charge to the prospective employer if the employer is a tax

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exempt corporation or an unincorporated nonprofit organization qualified under section501(c) of

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the United States Internal Revenue Code, 26 U.S.C. section 501(c). At the conclusion of the

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criminal background check required by this section, the attorney general, the state police, or local

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police department shall promptly destroy the fingerprint record of the applicant obtained pursuant

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to this section.

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     16-48.1-8. Destruction of fingerprint records. -- At the conclusion of any background

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

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destroy the fingerprint card record of the applicant.

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     SECTION 4. Section 23-17.7.1-20 of the General Laws in Chapter 23-17.7.1 entitled

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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employment of the employee.

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

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

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

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

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with the attorney general.

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     SECTION 5. Section 23-20.8-3 of the General Laws in Chapter 23-20.8 entitled

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"Licensing of Massage Therapy Establishments" is hereby amended to read as follows:

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     23-20.8-3. Practice of massage -- Use of titles limited -- Qualifications for licenses --

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Fees. -- (a) Only a person licensed under this chapter shall practice massage.

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      (b) Only a person licensed under this chapter as a massage therapist may use the title

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"massage therapist." Only a person licensed under this chapter may use the title "masseur" or

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"masseuse."

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      (c) No person, firm, partnership, or corporation shall describe its services under the title

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"massage" or "massage therapy" unless these services, as defined in section 23-20.8-1, are

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performed by a person licensed to practice massage under this chapter, and, if described as

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"massage therapy," by a massage therapist.

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      (d) Application for licenses as a masseur or masseuse, or as a massage therapist, shall be

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issued by the department of health. Except for persons licensed as massage therapists, the

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department shall establish minimum educational and training requirements for the persons to be

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licensed under this chapter and shall have the authority to take disciplinary action against a

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licensee for knowingly placing the health of a client at serious risk without maintaining the proper

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precautions.

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      (e) The fee for original application for licensure as a massage therapist and for annual

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license renewal shall be as set forth in section 23-1-54. Fees for all other licenses under this

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chapter shall be fixed in an amount necessary to cover the cost of administering this chapter.

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      (f) Any person applying for a license under this chapter shall undergo a criminal

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background check. Such persons shall apply to the bureau of criminal identification of the state

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police or local police department for a nationwide criminal records check. Fingerprinting shall be

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required. Upon the discovery of any disqualifying information as defined in section 23-20.8-5, the

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

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applicant, in writing, of the nature of the disqualifying information, and, without disclosing the

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nature of the disqualifying information, shall notify the department, in writing, that disqualifying

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information has been found. The applicant shall be responsible for payment of the costs of the

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criminal records check.

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

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of criminal identification shall inform the applicant and the licensing agency or the potential

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employer in writing of this fact.

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     (h) An applicant against whom disqualifying information has been found may request

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that a copy of the criminal background report be sent to the department, which shall make a

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judgment regarding the licensure of the applicant.

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     (i) The criminal records check shall be provided to the applicant without charge.

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     (j) At the conclusion of the criminal background check required by this section, the

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attorney general, the state police, or local police department shall promptly destroy the fingerprint

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record of the applicant obtained pursuant to this section.

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     SECTION 6. Section 39-18-4.1 of the General Laws in Chapter 39-18 entitled "Rhode

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Island Public Transit Authority" is hereby amended to read as follows:

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     39-18-4.1. Health and safety of passengers. -- (a) The authority shall have the power to

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establish reasonable rules of conduct for passengers for the protection of the health and safety of

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passengers and employees of the authority. The rules shall incorporate the provisions of the

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Americans with Disabilities Act of 1990, 42 USC section 12101 et seq., and section 28-5.1-7,

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chapter 28 of title 11 and chapter 87 of title 42 and be promulgated in accordance with the

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provisions of chapter 35 of title 42.

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      (b) All controversies arising out of application of any provision of this section shall be

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determined by the general manager or his or her designated hearing officer, who shall afford a

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hearing to the passenger and/or his or her parent or guardian, and, after hearing, shall render a

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written decision. The decision of the general manager or hearing officer shall be final except that

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the passenger aggrieved by the decision shall have a right of appeal to the superior court, which

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shall affirm the decision unless it is clearly erroneous or contrary to law. The hearing shall be

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conducted in accordance with the provisions of chapter 35 of title 42.

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      (c) Notice shall be provided to the RIde funding agency or agencies for any hearing

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regarding their client/passengers on RIde vehicles. A representative of the RIde funding agency

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or agencies may attend the hearing. The general manager or hearing officer will consider the

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recommendation of the RIde funding agency's representative in rendering his/her decision.

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      (d) The decision of the general manager or hearing officer may include:

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      (1) Refusing to transport a person whose violation of the rules of the authority threatens

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the health and safety of passengers or employees of the authority, for a period not to exceed six

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(6) months; and/or

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      (2) Revoking a passenger's ticket, pass, or other fare medium, regardless of the number

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of trips or time period for which the ticket, pass, or other fare medium is valid, if the passenger's

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continued presence on an authority vehicle or at an authority facility threatens the health or safety

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of the authority's other passengers or employees. The authority shall within a reasonable time

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after such a revocation, refund to the passenger the unused value of the ticket, pass, or other fare

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medium.

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      (e) Nothing under this section precludes any other action permitted by law.

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      (f) All RIde buses shall be installed with passenger security cameras when federal funds

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become available for this purpose.

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      (g) Any person seeking employment as a RIde bus driver shall undergo a criminal

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background check to be initiated prior to or within one week of employment. All employees hired

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prior to the enactment of this subsection shall be exempted from its requirements.

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      (1) The applicant shall apply to the bureau of criminal identification (BCI), department

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of attorney general, state police or local police department where he or she resides, for a statewide

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

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disqualifying information as defined in section 23-17-37, the bureau of criminal identification of

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

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

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

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discovered.

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      (2) An individual against whom disqualifying information has been found may request

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

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regarding the ability of the individual to drive a RIde bus. In those situations in which no

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disqualifying information has been found, the bureau of criminal identification, state police or

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local police department shall inform the applicant and the employer in writing of this fact.

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      (3) The criminal record check requirements of this section shall apply only to persons

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seeking to drive RIde buses.

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      (4) The criminal records check shall be provided to the applicant without charge.

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     SECTION 7. Sections 40-13.2-5, 40-13.2-5.1 and 40-13.2-5.2 of the General Laws in

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Chapter 40-13.2 entitled "Certification of Child Care and Youth Serving Agency Workers" are

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hereby amended to read as follows:

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     40-13.2-5. Criminal records check -- Employee of child care facilities which must be

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licensed by the department. -- (a) Any person seeking employment, if that employment involves

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supervisory or disciplinary power over a child or children or involves routine contact with a child

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or children without the presence of other employees, in any facility which is, or is required to be,

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licensed or registered with the department or seeking that employment at the training school for

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youth shall, after acceptance by the employer of the affidavit required by section 40-13.2-3, apply

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

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nationwide criminal records check. The check will conform to applicable federal standards

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including the taking of fingerprints to identify the applicant.

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      (b) Upon the discovery of any disqualifying information as defined in accordance with

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the rule promulgated by the director, the bureau of criminal identification of the state police or the

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

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information. In addition, the bureau of criminal identification of the state police or the local

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police department will inform the relevant employer, in writing, without disclosing the nature of

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the disqualifying information, that an item of disqualifying information has been discovered.

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

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

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applicant and the employer, in writing, of this fact.

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      (d) An applicant against whom disqualifying information has been found may request

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

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regarding the continued employment of the applicant.

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

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

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after August 1, 1985, and the results of the checks.

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      (e)(f) Failure to maintain that evidence on file will be prima facie grounds to revoke the

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license or registration of the operator of the facility.

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      (f)(g) It will be the responsibility of the bureau of criminal identification of the state

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police or the local police department to conduct the nationwide criminal records check pursuant

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to this section. The nationwide criminal records check will be provided to the applicant for

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employment without charge.

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     (h) At the conclusion of the criminal background check required by this section, the

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attorney general, the state police, or local police department shall promptly destroy the fingerprint

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record of the applicant obtained pursuant to this section.

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     40-13.2-5.1. Criminal records check -- Employee of youth serving agency. -- (a) Any

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person seeking employment, if that employment involves supervisory or disciplinary power over

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a child or children or involves routine contact with a child or children without the presence of

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other employees, in any facility or program which is a youth serving agency shall file with the

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employer the affidavit required by section 40-13.2-3. Said affidavit shall be maintained on file by

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the employer and shall be made available for inspection by the parent(s)/guardian(s) of any child

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who is enrolled in the programs of the youth serving agency.

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      (b) Any person seeking employment, if that employment involves supervisory or

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disciplinary authority over a child or children or involves routine contact with a child or children

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without the presence of other employees, in any youth serving agency, shall apply to the bureau

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of criminal identification of the attorney general's office for a criminal records check. The

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criminal records check shall be provided to the applicant without charge.

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      (c) Those items of information appearing on a criminal records check which have been

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determined to constitute disqualifying information by the director pursuant to section 40-13.2-4

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of this chapter shall also be items of disqualifying information pursuant to this section.

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      (d) Upon the discovery of any disqualifying information as defined in accordance with

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the rule promulgated by the director, the bureau of criminal identification of the attorney general's

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office will inform the applicant employer, in writing, of the nature of the disqualifying

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information. In addition, the bureau of criminal identification of the attorney general's office will

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inform the applicant, in writing, without disclosing the nature of the disqualifying information,

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that an item of disqualifying information has been discovered.

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     (e) An applicant against whom disqualifying information has been found may request that

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

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regarding the continued employment of the applicant.

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     (e)(f) In those situations in which no disqualifying information has been found, the

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bureau of criminal identification of the attorney general's office will inform both the applicant

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and the employer, in writing, of this fact. The employer will maintain on file, and make available

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for inspection by the parent(s)/guardian(s) of any child enrolled in the programs of the youth

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serving agency, evidence that criminal records checks have been obtained on all employees of the

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youth serving agency pursuant to section 40-13.2-5.1, and the results of the checks. The criminal

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records checks will be provided to the applicant for employment without charge.

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     (g) At the conclusion of the criminal background check required by this section, the

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attorney general, the state police, or local police department shall promptly destroy the fingerprint

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record of the applicant obtained pursuant to this section.

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     40-13.2-5.2. Criminal records check -- Employees of the department of children,

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youth and families. -- (a) Any person seeking employment with the department of children,

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youth and families, if that employment involves supervisory or disciplinary power over a child or

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children or involves routine contact with a child or children without the presence of other

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employees, shall apply to the bureau of criminal identification (BCI), department of attorney

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general, state police, or local police department where the applicant resides, for a national and

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state criminal records check. The check shall conform to the applicable federal standards

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including the taking of fingerprints to identify the applicant. The director shall determine by rule

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those items of information appearing on a criminal records check which constitute disqualifying

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information because the information would indicate that employment could endanger the health

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or welfare of a child or children and would be inconsistent with the purpose and intent of the

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department of children, youth and families.

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      (b) The department of attorney general, the state police or the local police department

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shall forward the results of the nationwide and state criminal record checks, including the nature

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of any criminal record, on the individual to the individual and to the department of children,

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youth and families. Upon the discovery of any disqualifying information with respect to an

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applicant, the department of children, youth and families shall inform the applicant of the

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disqualifying information. Upon the discovery of any disqualifying information as defined in

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accordance with the rules promulgated by the director, the bureau of criminal identification of the

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state police or the attorney general's office shall inform the applicant, in writing, of the nature of

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the disqualifying information. In addition, the bureau of criminal identification of the attorney

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general's office shall inform the department in writing, without disclosing the nature of the

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disqualifying information, that an item of disqualifying information has been discovered.

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

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a copy of the criminal background report be sent to the department which shall make a judgment

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regarding the continued employment of the applicant.

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

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of criminal identification of the attorney general's office shall inform both the applicant and the

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department of this fact in writing.

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      (c)(e) The cost of criminal record checks required by this section for individuals who are

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not currently employed by the State of Rhode Island shall be the responsibility of the applicant.

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The cost of criminal records checks required by this section for individuals who are currently

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employed by the State of Rhode Island applicants and employees shall be the responsibility of the

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department of children, youth and families.

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      (d)(f) Any individual required to submit to a criminal background check, state and/or

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federal, under subsection (a) above who has submitted to a criminal background check conducted

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within the previous six (6) months in accordance with section 14-1-34 and/or section 15-7-11

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and/or sections 40-13.2-2, 40-13.2-4, 40-13.2-5, and/or section 40-13.2-9, shall be exempt from

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an additional check but shall request the department of attorney general, the state police or the

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local police department which conducted the check forward the results, including the nature of

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the criminal record, to the department of children, youth and families.

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     (g) At the conclusion of the criminal background check required by this section, the

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attorney general, the state police, or local police department shall promptly destroy the fingerprint

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record of the applicant obtained pursuant to this section.

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     SECTION 8. Sections 40.1-25.1-1 and 40.1-25.1-5 of the General Laws in Chapter 40.1-

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25.1 entitled "Employee Criminal Records Check" are hereby amended to read as follows:

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     40.1-25.1-1. Purpose. -- In order to provide protection for persons residing in or

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receiving services from facilities, programs or agencies licensed, funded and/or operated by the

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department of mental health, retardation, and hospitals, all persons eighteen (18) years or older, as

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further defined in section 40.1-25.1-3 seeking employment in any facility or program licensed,

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funded and/or operated by the department shall be required to undergo a national criminal

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background check for the purpose of determining whether the prospective employee has been

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convicted of a crime that bears upon his or her fitness to have the responsibility for the safety and

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well-being of persons residing in or receiving services from facilities, programs or agencies

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licensed, funded and/or operated by the department.

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

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

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destroy the fingerprint card record of the applicant.

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     SECTION 9. Section 45-2-3.3 of the General Laws in Chapter 45-2 entitled "General

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Powers" is hereby amended to read as follows:

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     45-2-3.3. Background checks. – (a) Notwithstanding any law to the contrary, any

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municipal recreation department may request a background check from their local police

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department for any employee or volunteer serving their community.

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     (b) The applicant shall apply to the bureau of criminal identification for a criminal

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records background check. Upon the discovery of any disqualifying information, the bureau of

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criminal identification shall inform the applicant in writing of the nature of the disqualifying

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

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municipal recreation department in writing that disqualifying information has been discovered.

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

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a copy of the criminal background report be sent to the municipal recreation department. The

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municipal recreation department shall make a judgment regarding the continued employment or

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volunteerism of the applicant.

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

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of criminal identification of the attorney general's office shall inform both the applicant and the

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municipal recreation department of this fact in writing.

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     (e) For purposes of this section, "disqualifying information" means those offenses listed

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in section 23-17-37, and those offenses listed in sections 11-37-8.1 and 11-37-8.3.

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     (f) The criminal records check shall be provided to the applicant without charge.

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SECTION 10. This act shall take effect upon passage.

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LC01727

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N A C T

RELATING TO BUSINESS AND PROFESSIONS - CRIMINAL RECORD BACKGROUND

CHECKS

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     This act would make changes to how information contained within criminal background

13-2

checks is disseminated and disclosed.

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     This act would take effect upon passage.

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LC01727

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