2014 -- S 2652

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LC004290

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     STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2014

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A N   A C T

RELATING TO CRIMINAL PROCEDURE

     Introduced By: Senators Lombardi, DiPalma, Satchell, Jabour, and Conley

     Date Introduced: March 04, 2014

     Referred To: Senate Judiciary

     (Attorney General)

It is enacted by the General Assembly as follows:

     SECTION 1. Title 12 of the General Laws entitled "CRIMINAL PROCEDURE" is

hereby amended by adding thereto the following chapter:

CHAPTER 1.6

NATIONAL CRIMINAL RECORDS CHECK SYSTEM

     12-1.6-1. Automated fingerprint identification system database. -- The department of

attorney general may establish and maintain an automated fingerprint identification system

database that would allow the department to store and maintain all fingerprints submitted in

accordance with the national criminal records check system. The automated fingerprint

identification system database would provide for an automatic notification if, and when, a

subsequent criminal arrest fingerprint card is submitted to the system that matches a set of

fingerprints previously submitted in accordance with a national criminal records check. If the

aforementioned arrest results in a conviction, the department shall immediately notify those

individuals and entities with which that individual is associated and who are required to be

notified of disqualifying information concerning national criminal records checks as provided in

chapters 17, 17.4, 17.7.1 of title 23 or § 23-1-52. The information in the database established

under this section is confidential and not subject to disclosure under chapter 38-2.

     12-1.6-2. Long-term healthcare workers. -- The department of attorney general shall

maintain an electronic, web-based system to assist facilities, licensed under chapters 17, 17.4,

17.7.1 of title 23 or § 23-1-52, required to check relevant registries and conduct national criminal

records checks of routine contact patient employees. The department of attorney general shall

provide for an automated notice, as authorized in § 12-1.6-1, to those facilities if a routine contact

patient employee is subsequently convicted of a disqualifying offense, as described in the relevant

licensing statute. The department of attorney general may charge a facility a one-time, set-up fee

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

section.

     12-1.6-3. Immunity from liability. -- The department of attorney general; the

department of health; or an employer who disqualifies an applicant from employment or

continued employment; on the basis of a disqualification notice as described in § 12-1.6-2, or of a

national criminal records check relating to disqualifying information, shall not be liable for civil

damages or subject to any claim, demand, cause of action, or proceeding of any nature as a result

of the disqualification.

     12-1.6-4. Rules and regulations. -- The department of attorney general may promulgate

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

     SECTION 2. Section 23-1-52 of the General Laws in Chapter 23-1 entitled "Department

of Health" is hereby amended to read as follows:

     23-1-52. Adult day care program licensure. -- (a) The director is authorized and

directed to establish a program for the licensure of adult day care programs. "Adult day care

program" shall mean a comprehensive, nonresidential program designed to address the biological,

psychological, and social needs of adults through individual plans of care that incorporate, as

needed, a variety of health, social, and related support services in a protective setting. The

director is further authorized to promulgate regulations as he or she deems necessary to

implement these provisions.

     (b) Any person seeking employment in any adult day care facility licensed herein and

having routine contact with an adult day care client or having access to such a client’s belongings

or funds shall undergo a national criminal records check that shall include fingerprints submitted

to the Federal Bureau of Investigation (FBI) by the bureau of criminal identification of the

department of attorney general. The national criminal records check shall be processed prior to, or

within one week of, employment. All persons who, as of September 30, 2014, are already

employed by an adult day care facility and all persons who, as of such date, already provide

services under this section shall be exempted from the requirements of this section for purposes

of their current employment only.

     (1) The director may, by rule, identify those positions requiring national criminal records

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

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of the department of attorney general for a national criminal records check. Upon the discovery of

any disqualifying information as defined in § 23-1-52(c), and in accordance with rules

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

general shall inform the applicant in writing, of the nature of the disqualifying information; and,

without disclosing the nature of the disqualifying information, shall notify the employer, in

writing, that disqualifying information has been discovered.

     (2) An employee against whom disqualifying information has been found may provide a

copy of the national criminal records check to the employer. The employer shall make a judgment

regarding the continued employment of the employee.

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

of criminal identification of the department of attorney general shall inform the applicant and the

employer, in writing, of this fact.

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

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

employment between January 1, 2008, and September 30, 2014, and the results of the checks. The

employer shall maintain on file, subject to inspection by the department, evidence that national

criminal records checks have been initiated on all employees seeking employment on or after

October 1, 2014, and the results of those checks. Failure to maintain that evidence may be

grounds to revoke the license or registration of the employer.

     (5) The employee shall be responsible for the cost of conducting the national criminal

records check through the bureau of criminal identification of the department of attorney general.

     (c) Information produced by a national criminal records check pertaining to conviction

for the following crimes will result in a letter to the employee and employer disqualifying the

applicant from employment: murder, voluntary manslaughter, involuntary manslaughter, first-

degree sexual assault, second-degree sexual assault, third-degree sexual assault, assault on

persons sixty (60) years of age or older, assault with intent to commit specified felonies (murder,

robbery, rape, burglary, or the abominable and detestable crimes against nature), felony assault,

patient abuse, neglect or mistreatment of patients, burglary, first-degree arson, robbery, felony

drug offenses, felony obtaining money under false pretenses, felony embezzlement, abuse,

neglect and/or exploitation of adults with severe impairments, exploitation of elders, felony

larceny, or felony banking law violations, or a crime under section 1128(a) of the Social Security

Act (42 U.S.C. §1320a-7(a)). An employee against whom disqualifying information has been

found may provide a copy of the national criminal records check to the employer who shall make

a judgment regarding the continued employment of the employee. For purposes of this

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subsection, "conviction" means, in addition to judgments of conviction entered by a court

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

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

where a defendant has entered into a deferred sentence agreement with the attorney general.

     SECTION 3. Sections 23-17-34 and 23-17-37 of the General Laws in Chapter 23-17

entitled "Licensing of Health Care Facilities" are hereby amended to read as follows:

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

providers and home care providers. -- (a) Any person seeking employment in a nursing facility,

a home nursing care provider, hospice provider, or a home care provider which who is or is

required to be, licensed, registered, or certified with the department of health if that employment

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

undergo a national criminal background records check to which shall include fingerprints

submitted to the Federal Bureau of Investigation (FBI) by the bureau of criminal identification of

the department of attorney general. The national criminal records check shall be initiated prior to,

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

shall be exempted from the requirements of this section. All persons who, as of September, 30,

2014, are already employed by a covered facility or provider and all persons who, as of such date,

already provide services under this chapter, shall be exempted from the requirements of this

section for purposes of their current employment only.

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

requiring criminal background records checks. The identified employee, through the employer,

shall apply to the bureau of criminal identification of the state police or local police department of

attorney general for a statewide national criminal records check. Fingerprinting shall not be

required. Upon the discovery of any disqualifying information as defined in section §23-17-37

and, in accordance with the rule promulgated by the director of health, the bureau of criminal

identification of the state police or the local police department of attorney general will inform the

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

nature of the disqualifying information, will notify the employer, in writing, that disqualifying

information has been discovered.

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

request that a copy of the national criminal records check background report be sent to the

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

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

of criminal identification of the state police or the local police department of attorney general

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

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

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

employment after between October 1, 1991, and September 30, 2014, and the results of the

checks. Failure to maintain that evidence would be grounds to revoke the license or registration of

the employer. The employer shall maintain on file, subject to inspection by the department of

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

seeking employment on or after October 1, 2014, and the results of those checks.

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

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

employment without charge to either the employee or the employer. The employee shall be

responsible for the cost of conducting the national criminal records check through the bureau of

criminal identification of the department of attorney general.

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

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

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

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

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

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

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

burglary, first-degree arson, robbery, felony drug offenses, felony larceny, or felony banking law

violations, felony obtaining money under false pretenses, felony embezzlement, abuse, neglect

and/or exploitation of adults with severe impairments, exploitation of elders, or a crime under

section 1128(a) of the Social Security Act (42 U.S.C. §1320a-7(a)). An employee against whom

disqualifying information has been found may request that provide a copy of the national criminal

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

the continued employment of the employee.

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

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

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

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

with the attorney general.

     SECTION 4. Chapter 23-17 of the General Laws entitled "Licensing of Health Care

Facilities" is hereby amended by adding thereto the following section:

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     23-17-62. Criminal records review - long-term care hospital. -- (a) For the purposes of

this section, a "long-term care hospital" shall mean a facility as described in 42 U.S.C. 1395 §

ww(d)(1)(iv), that receives payment for inpatient services it provides to Medicare beneficiaries

pursuant to 42 U.S.C. § 1395ww(m).

     (b) Any person seeking employment in any long-term care hospital, having routine

contact with a long-term care hospital patient or having access to such a patient’s belongings or

funds, shall undergo a national criminal records check that shall include fingerprints submitted to

the Federal Bureau of Investigation (FBI) by the bureau of criminal identification of the

department of attorney general. The national criminal records check shall be processed prior to, or

within one week of, employment. All persons who, as of September 30, 2014, are already

employed by a long-term care hospital and all persons who, as of such date, already provide

services under this section, shall be exempted from the requirements of this section for purposes

of their current employment only.

     (1) The director may, by rule, identify those positions requiring national criminal records

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

of the department of attorney general for a national criminal records check. Upon the discovery of

any disqualifying information, as defined in § 23-17-62(c), and in accordance with the rule

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

general shall inform the applicant, in writing, of the nature of the disqualifying information; and,

without disclosing the nature of the disqualifying information, shall notify the employer, in

writing, that disqualifying information has been discovered.

     (2) An employee against whom disqualifying information has been found may provide a

copy of the national criminal records report to the employer. The employer shall make a judgment

regarding the continued employment of the employee.

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

of criminal identification of the department of attorney general shall inform the applicant and the

employer, in writing, of this fact.

     (4) The employer shall maintain on file, subject to inspection by the department, evidence

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

between October 1, 1991, and September 30, 2014, and the results of the checks. The employer

shall maintain on file, subject to inspection by the department, evidence that national criminal

records checks have been initiated on all employees seeking employment on or after October 1,

2014, and the results of those checks. Failure to maintain that evidence would be grounds to

revoke the license or registration of the employer.

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     (5) The employee shall be responsible for the cost of conducting the national criminal

records check through the bureau of criminal identification of the department of attorney general.

     (c) Information produced by a national criminal records check pertaining to conviction,

for the following crimes will result in a letter to the employee and employer disqualifying the

applicant from employment: murder, voluntary manslaughter, involuntary manslaughter, first-

degree sexual assault, second-degree sexual assault, third-degree sexual assault, assault on

persons sixty (60) years of age or older, assault with intent to commit specified felonies (murder,

robbery, rape, burglary, or the abominable and detestable crimes against nature), felony assault,

patient abuse, neglect or mistreatment of patients, burglary, first-degree arson, robbery, felony

drug offenses, felony obtaining money under false pretenses, felony embezzlement, abuse,

neglect and/or exploitation of adults with severe impairments, exploitation of elders, felony

larceny, or felony banking law violations, or a crime under section 1128(a) of the Social Security

Act (42 U.S.C. § 1320a-7(a)). An employee against whom disqualifying information has been

found may provide a copy of the national criminal records check to the employer who shall make

a judgment regarding the continued employment of the employee. For purposes of this

subsection, “conviction” means, in addition to judgments of conviction entered by a court

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

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

where a defendant has entered into a deferred sentence agreement with the attorney general.

     SECTION 5. Sections 23-17.4-27 and 23-17.4-30 of the General Laws in Chapter 23-

17.4 entitled "Assisted Living Residence Licensing Act" are hereby amended to read as follows:

     23-17.4-27. Criminal records review. -- (a) Any person seeking employment in any

assisted living residence licensed under this act, and having routine contact with a resident or

having access to a resident's belongings or funds, shall undergo a national criminal background

records check to that shall include fingerprints submitted to the Federal Bureau of Investigation

(FBI) by the bureau of criminal identification of the department of attorney general. The national

criminal records check shall be processed prior to or within one week of employment. All

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

this section. All persons who, as of September 30, 2014, are already employed by an assisted

living residence and all persons who, as of such date, already provide services under this chapter,

shall be exempted from the requirements of this section for purposes of their current employment

only.

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

requiring national criminal background records checks. The employee, through the employer,

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shall apply to the bureau of criminal identification of the state police or local police department of

attorney general for a statewide national criminal records check. Fingerprinting shall not be

required. Upon the discovery of any disqualifying information as defined in section § 23-17.4-30,

and in accordance with the rule promulgated by the director of health, the bureau of criminal

identification of the state police or the local police department of attorney general will inform the

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

nature of the disqualifying information, will notify the employer in writing that disqualifying

information has been discovered.

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

that provide a copy of the national criminal background report be sent records check to the

employer. The administrator shall make a judgment regarding the continued employment of the

employee.

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

of criminal identification (BCI) of the state police or the local police department of attorney

general shall inform the applicant and the employer in writing of this fact.

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

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

employment after between October 1, 1991, and September 30, 2014, and the results of the

checks. The employer shall maintain on file, subject to inspection by the department of health,

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

employment on or after October 1, 2014, and the results of those checks. Failure to maintain that

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

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

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

employment without charge to either the employee or employer. The employee shall be

responsible for the cost of conducting the national criminal records check through the bureau of

criminal identification of the department of attorney general.

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

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

letter to the employee and employer disqualifying the applicant from employment: murder,

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

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

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

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

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mistreatment of patients, burglary, first-degree arson, robbery, felony drug offenses, felony

obtaining money under false pretenses, felony embezzlement, abuse, neglect and/or exploitation

of adults with severe impairments, exploitation of elders, felony larceny or felony banking law

violations. An employee against whom disqualifying information has been found may request

that provide a copy of the national criminal background report be sent records check to the

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

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

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

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

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

with the attorney general.

     SECTION 6. Sections 23-17.7.1-17 and 23-17.7.1-20 of the General Laws in Chapter 23-

17.7.1 entitled "Licensing of Nursing Service Agencies" are hereby amended to read as follows:

     23-17.7.1-17. Criminal records review. -- (a) Any person seeking employment in a

facility which who is or is required to be, licensed or registered with the department of health if

that employment involves routine contact with a patient or resident without the presence of other

employees, shall undergo a national criminal background records check, which that shall include

fingerprints submitted to the Federal Bureau of Investigation (FBI) by the bureau of criminal

identification of the department of attorney general. The national criminal records check shall be

initiated prior to, or within one week of, employment. All employees hired prior to the enactment

of this section shall be exempted from the requirements of this section. All persons who, as of

September 30, 2014, are already employed by a covered facility and all persons who, as of such

date, already provide services under this chapter, shall be exempt from the requirements of this

section for purposes of their current employment only.

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

requiring national criminal background records checks. The employee, through the employer,

shall apply to the bureau of criminal identification of the state police or local police department of

attorney general for a statewide national criminal records check. Fingerprinting shall not be

required. Upon the discovery of any disqualifying information as defined in section § 23-17.7.1-

20, and in accordance with the rule promulgated by the director of the department of health, the

bureau of criminal identification of the state police or the local police department of attorney

general will inform the applicant, in writing, of the nature of the disqualifying information; and,

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

writing, that disqualifying information has been discovered.

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

has been found may request that provide a copy of the national criminal background report be

sent records check to the employer who shall make a judgment regarding the continued

employment of the employee.

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

of criminal identification of the state police or the local police department of attorney general

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

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

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

between October 1, 1991, and September 30, 2014, and the results of the checks. The employer

shall maintain on file, subject to inspection by the department of health, evidence that national

criminal records checks have been initiated on all employees seeking employment on or after

October 1, 2014, and the results of those checks. Failure to maintain that evidence would be

grounds to revoke the license or registration of the employer.

     (f) It shall be the responsibility of the bureau of criminal identification of the state police5

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

employment without charge to either the employee or the employer. The employee shall be

responsible for the cost of conducting the national criminal records check through the bureau of

criminal identification of the department of attorney general.

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

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

letter to the employee and employer disqualifying the applicant from the employment: murder,

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

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

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

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

mistreatment of patients, first-degree arson, robbery, felony drug offenses, larceny, or felony

banking law violations felony obtaining money under false pretenses, felony embezzlement,

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

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

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

     (b) Information produced by a national criminal records review check pertaining to

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

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

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information related to this subsection has been found may request that provide a copy of the

national criminal background report be sent records check to the employer who shall make a

determination regarding the continued employment of the employee.

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

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

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

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

with the attorney general.

     SECTION 7. Section 1 of this act shall take effect upon passage. Sections 2, 3, 3, 5 and 6

of this act shall take effect on September 30, 2014.

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N   A C T

RELATING TO CRIMINAL PROCEDURE

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     This act would expand the type of criminal records check required for persons applying

to be routine contact patient employees in a long-term facility or provider.

     Section 1 of this act would take effect upon passage. Sections 2, 3, 4, 5 and 6 would take

effect on September 30, 2014.

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