2014 -- H 7413

Enacted 07/02/14

A N A C T

Introduced By: Representatives Naughton, Fellela, Shekarchi, and Diaz

Date Introduced: February 12, 2014

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 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 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~~ ~~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 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:

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.

(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.

(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, 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 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.

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.

(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.

(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 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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LC004289
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