Chapter 127

2005 -- S 0267 SUBSTITUTE B

Enacted 07/01/05

A N A C T

RELATING TO BUSINESSES AND PROFESSIONS -- NURSING SERVICE AGENCIES

Introduced By: Senators Alves, and DaPonte

Date Introduced: February 08, 2005

It is enacted by the General Assembly as follows:

     SECTION 1. Chapter 5-34.1 of the General Laws entitled "Nursing Pools" is hereby

repealed in its entirety.

CHAPTER 5-34.1

Nursing Pools

5-34.1-1. -- 5-34.1-6. [Repealed.] –

5-34.1-6.1. "Nursing pool" defined. -- A nursing pool is defined as any person, firm,

partnership, corporation, limited liability company or other legal entity doing business within the

state of Rhode Island, excluding hospitals that supply on a temporary basis registered nurses and

licensed practical nurses, to facilities requiring the services of such persons. For all purposes a

nursing pool shall be considered an employer and those persons that it supplies on a temporary

basis shall be considered employees and not independent contractors and nursing pools shall be

subject to all state and federal laws which govern employer-employee relations.

5-34.1-6.2. Registration of nursing pools -- Rules governing. -- All nursing pools

within the state of Rhode Island must be registered with the department of health. The registration

fee shall be five hundred dollars ($500) per year. A nursing pool applicant who has submitted a

fee of five hundred dollars ($500) to the department for license application or renewal as a home

care provider, home nursing care provider, or hospice provider shall be exempt from paying an

additional fee to register as a nursing pool. On or before December 31, 2004, the department of

health shall promulgate registration standards, and rules and regulations governing the operation

of nursing pools to protect the health and welfare of patients. Such regulations shall include, but

not be limited to, employee bonding, and appropriate staff professional certification and licensure

and liability insurance.

5-34.1-6.3. Nursing pool employees -- Identification. -- Any employee of a nursing

pool upon employment and prior to placement shall be provided with a photo identification which

shall be worn on the employee's person while the employee is working. The photo identification

shall, in addition to a recent photograph of the employee, include the employee's name, certificate

or licensing number with expiration date and the name of the nursing pool.

5-34.1-6.4. Penalty for operation of unregistered nursing pool. -- Any person, firm,

partnership, corporation, limited liability company or other legal entity establishing, conducting,

managing, or operating a nursing pool without registration under this chapter or who shall operate

such business after revocation or suspension of a registration or after an order to curtail any or all

activities shall be liable to a penalty of one hundred dollars ($100) for each day of operation in

violation thereof for the first offense and for any subsequent offense shall be liable to a penalty of

one hundred fifty dollars ($150) for each day of operation in violation thereof.

5-34.1-6.5. Injunction to restrain operation without registration. -- Notwithstanding

the existence or pursuant to any other remedy, any person, including a nursing pool registered

pursuant to this chapter, may, in the manner provided by law upon the advice of the attorney

general, who shall represent the person in the proceedings, maintain an action in the name of the

state for injunction or other process against any person to restrain or prevent the establishment,

conduct, management or operation of a nursing pool without registration under this chapter.

5-34.1-7. Criminal records review. -- (a) Any person seeking employment in any

facility which 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 criminal background check to be initiated prior to or within one week

of employment. All employees hired prior to the enactment of this section are exempt from the

requirements of this section.

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

requiring criminal background checks. The employee shall apply to the bureau of criminal

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

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

as defined in section 5-34.1-10 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 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 was discovered.

(c) An employee against whom disqualifying information is found may request that a

copy of the criminal background report be sent to the employer who makes a judgment regarding

the continued employment of the employee.

(d) In those situations in which no disqualifying information is found, the bureau of

criminal identification (BCI) of the state police or the local police 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 were initiated on all employees seeking

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

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

(f) It is 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 the employer.

5-34.1-8. Prior criminal records checks. -- If an applicant for employment has

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

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

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

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

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

5-34.1-9. Rules and regulations. -- The director of the department of health is authorized

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

5-34.1-10. Disqualifying information. -- Information produced by a criminal records

review pertaining to conviction, as defined by 42 U.S.C. section 1320a-7, for the following

crimes shall 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,

larceny or felony banking law violations. An employee against whom disqualifying information

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

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

     SECTION 2. Title 23 of the General Laws entitled "Health and Safety" is hereby

amended by adding thereto the following chapter:

CHAPTER 17.7.1

LICENSING OF NURSING SERVICE AGENCIES

23-17.7.1-1. Declaration of purpose. – The purpose of this chapter is to provide for the

development, establishment, and enforcement of standards:

(1) For the licensing of nursing service agencies; and

(2) To promote safe and adequate care for individuals receiving nursing and nursing

related services.

23-17.7.1-2. Definitions. – (a) "Director" means the director of the state department of

health;

(b) "Licensing agency" means the state department of health;

(c) "Nursing assistant" is defined as a nursing, orderly, or home health aide who is a

paraprofessional trained to give personal care and related health care and assistance based on his

or her level of preparation to individuals who are sick, disabled, dependent, or infirmed. The

director of the department of health may by regulation establish different levels of nursing

assistants;

(d) "Nursing service agency" is defined as any person, firm, partnership, or corporation

doing business within the state that supplies, on a temporary basis, registered nurses, licensed

practical nurses, or nursing assistants to a hospital, nursing home, or other facility requiring the

services of those persons, with the exception of hospitals, home nursing care providers, home

care providers, and hospices licensed in this state. For all purposes a nursing service agency shall

be considered an employer and those persons that it supplies on a temporary basis shall be

considered employees and not independent contractors, and the nursing service agency shall be

subject to all state and federal laws which govern employer-employee relations;

(e) "Service record" means the written entire documenting service rendered by the

nursing service agency.

23-17.7.1-3. Licensing of nursing service agencies – Rules governing establishment

of fees. – (a) The director may establish reasonable fees for the licensure application, licensure

renewal, and administrative actions under this chapter. Annual licensure fees shall be five

hundred dollars ($500) per licensee.

(b) The department of health shall promulgate licensure standards, and rules and

regulations governing the operation of nursing service agencies to protect the health and welfare

of patients. These regulations shall include, but not be limited to, employee bonding, maintenance

of service records, and appropriate staff professional registration and certification, licensure

training, supervision, health screening and liability insurance.

23-17.7.1-4. License required for nursing service agencies. – No person shall establish,

conduct, or maintain a nursing service agency in this state without a license issued pursuant to

this chapter.

23-17.7.1-5. Application for license. – An application for a license shall be made to the

licensing agency upon forms provided by it and shall contain any information that the licensing

agency reasonably requires, which may include affirmative evidence of ability to comply with

reasonable standards and the rules and regulations as issued pursuant to this chapter. Each

application shall be accompanied by payment of the fees prescribed in accordance with section

23-17.7.1-3.

23-17.7.1-6. Issuance of license -- Posting -- Transfer conditions. – Upon receipt of an

application for a license, the licensing agency shall issue a license if the applicant meets the

requirements established under this chapter, and any reasonable rules and regulations that may be

established in accordance with the requirements established under this chapter. The license shall

be conspicuously posted on the licensed premises. Each license shall be issued only to person(s)

named in the application and shall not be transferable or assignable except with the prior written

approval of the licensing agency. Any change in owner or operation of a licensed nursing service

agency shall require approval of the licensing agency as a condition precedent to the transfer,

assignment, or issuance of a new license.

23-17.7.1-7. Expiration and renewal of license. – A license shall be for one year and

shall expire on the thirty-first (31st) day of December following its issuance and may be renewed

from year to year after inspection, report, approval, and collection of fees by the licensing agency.

The inspection shall be made any time prior to the date of expiration of the license. The report

shall contain information in any form that the licensing agency shall prescribed by regulation.

23-17.7.1-8. Denial, suspension, or revocation of license. – The licensing agency, after

notice and opportunity for a hearing to the applicant or licensee, is authorized to deny, suspend,

or revoke a license in any case in which it finds that there has been failure to comply with the

requirements established under and pursuant to this chapter. The notice shall be effected by

registered or certified mail or by personal service, setting forth the particular reasons for the

proposed action and fixing a date not less than thirty (30) days from the date of the mailing or

service, at which time the applicant or licensee shall be given an opportunity for a prompt and fair

hearing. On the basis of the hearing, or upon the failure of the applicant or licensee to appear, the

licensing agency shall make a determination specifying its findings of fact and conclusion of law.

A copy of the determination shall be sent by registered or certified mail or served personally upon

the applicant or licensee. The decision denying, suspending, or revoking the license or application

shall become final thirty (30) days after it is so mailed or served, unless the applicant or licensee,

within the thirty (30) day period, appeals the decision pursuant to section 42-35-15. The

procedure governing hearings authorized by this section shall be in accordance with sections 42-

35-9 through 42-35-13 as stipulated in subsection 42-35-14(a). A full and complete record shall

be kept of all proceedings, and all testimony shall be reported but need not be transcribed unless

the decision is appealed pursuant to section 42-35-15. A copy or copies of the transcript may be

obtained by an interested party on payment of the cost of preparing the copy or copies. Witnesses

may be subpoenaed by either party.

23-17.7.1-9. Judicial review of license action. – Any person who has exhausted all

administrative remedies available to him or her within the licensing agency, and who is aggrieved

by a final decision of the licensing agency, is entitled to judicial review in accordance with the

provisions of sections 42-35-15 and 42-35-16.

23-17.7.1-10. Regulations, inspections, and investigations. – The licensing agency

shall, after a public hearing pursuant to chapter 35 of title 42, give notice, adopt, amend,

promulgate, and enforce any rules and regulations and standards with respect to nursing service

agencies to be licensed under this chapter that may be designed to further the accomplishment of

the purposes of this chapter in promoting safe and adequate care of individuals receiving nursing

and nursing assistant services, in the interest of public health, safety, and welfare. All licensed

nursing service agencies shall be required to protect clients by insuring that all persons whom it

employs receive training and/or competency evaluation pursuant to the provisions of sections 23-

17.9-3 and 23-17.7-11. The licensing agency shall make or cause to be made any inspections and

investigations that it deems necessary including service records.

23-17.7.1-11. Training and/or competency evaluation program for nursing

assistants. – Every individual who is employed to provide nursing assistant services shall be

required to be registered as required by chapter 23-17.9.

23-17.7.1-12. Nursing service agency employees identification. – (a) Any employee of

a nursing service agency upon employment and prior to placement shall be provided with a photo

identification which shall be worn on the employee's person while the employee is working.

(b) The photo identification shall be a recent photograph of the employee and shall

include the employee's name, certificate, or licensing number with expiration date and the name

of the nursing service agency.

23-17.7.1-13. Agencies to which chapter inapplicable. – (a) The provisions of this

chapter shall not be construed to apply to hospices, home nursing care providers and homecare

providers licensed in accordance with chapter 17 of this title; however, the agencies shall be

subject to the same training requirements for nursing assistants and the duties of the individuals

shall be the same as those prescribed by regulations.

(b) Training Thru Placement, Inc., and the respite care services provided to the

developmentally disabled by Training Thru Placement, Inc., shall be exempted from the

provisions of this chapter.

23-17.7.1-14. Agencies to which chapter inapplicable. – (a) The provisions of this

chapter shall not be construed to apply to hospitals, home nursing care providers and homecare

providers licensed in accordance with chapter 17 of this title; however, the agencies shall be

subject to the same training requirements for nursing assistants and the duties of the individuals

shall be the same as those prescribed by regulations.

23-17.7.1-15. Nursing service agencies exempt. – The provisions of this chapter shall

not apply to:

(1) Nursing service agencies and nursing exempt from regulation by the state;

(2) Visiting nursing services or home health services conducted by and for those who rely

exclusively upon spiritual means through prayer alone in accordance with the creed or tenets of a

recognized church or religious denomination; or

(3) Nursing service agencies who limit the provision of temporary staff, including

registered nurses, licensed practical nurses, or nursing assistants, to one or more hospitals

provided that such nursing service agency maintain certification from the joint commission on the

accreditation of health care organizations or such other accreditation entity acceptable to the

director.

23-17.7.1-16. Severability. – If any provision of this chapter or the application of any

provision of this chapter to any person or circumstance shall be held invalid, the invalidity shall

not affect the provisions or application of this chapter which can be given effect without the

invalid provisions or application, and to this end the provisions of the chapter are declared to be

severable.

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

facility which 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 criminal background check, which 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.

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

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

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

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

disqualifying information as defined in section 23-17.7.1-19 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 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 under subsection 23-17.7.1-

19(b) has been found may request that a copy of the criminal 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 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. 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 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.

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

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

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

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

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

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

23-17.7.1-19. Rules and regulations. – The director of the department of health is

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

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

records review 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.

(b) Information produced by a criminal records review 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 information

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

report be sent 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.

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

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

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

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

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

     SECTION 3. This act shall take effect on January 1, 2006.     

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LC01016/SUB B

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