§321-15.2 Background checks. (a) For the purposes of this section:
"Adults" means individuals aged eighteen years or older.
"Applicant" means a person or entity seeking licensure or certification to operate a healthcare facility. If the applicant is an entity, the term "applicant" shall also include its principals, directors, partners, managers, agents, and representatives to the extent that any of these individuals will have access to or contact with clients, their finances, assets, personal property, medical records, or individually identifiable information.
"Background check" means a review of records stored in state or national record repositories for history of abuse, neglect, threatened harm, or other maltreatment against children or adults, and for any criminal history, including:
(1) Adult abuse perpetrator records by means of a search of the individual's name and birth date in the state adult protective services central registry of reported cases established in section 346-224;
(2) Child abuse and neglect records by means of:
(A) An initial name inquiry in the state child welfare record files;
(B) A subsequent child abuse confirmation history check for new hires and rehires; and
(C) An annual name inquiry into state child welfare record files;
(3) Criminal history records in accordance with section 846-2.7;
(4) Sex offender registry records;
(5) Certified nurse aide registry for information or findings pursuant to section 457A-3; and
(6) Adult abuse perpetrator records, child abuse and neglect records, criminal history records, sex offender registry records, and certified nurse aide registry records of another state where a prospective employee or adult volunteer previously resided.
"Conviction for a relevant crime" means any federal or state conviction for any relevant crime as defined in this section.
"Criminal history record name inquiry" means a record check by name for any federal or state conviction for any relevant crime as defined in this section.
"Department" means the department of health.
"Direct patient access employee" means any individual, including a volunteer, who has access to a patient or resident of a healthcare facility, or any provider through employment or through an agreement or contract with such a facility or provider. Such individuals include but are not limited to: physicians, nurses, nursing assistants, home health aides, therapists, activities personnel, and support staff (i.e., housekeeping, dietary, etc.) who have direct access to patients or patient belongings.
"Disqualifying information" means a conviction for a relevant crime or a finding of patient or resident abuse.
"Healthcare facility" [Repeal and reenactment on June 30, 2019. L Sp 2009, c 21, §8; am L 2014, c 125, §2.] means a facility, setting, or agency licensed or certified by the department of health that provides mental health or health care services or living accommodations to individuals, such as a skilled nursing facility, intermediate care facility, adult residential care home, expanded adult residential care home, assisted living facility, home health agency, home care agency, hospice, adult day health center, special treatment facility, therapeutic living program, intermediate care facility for individuals with intellectual disabilities, hospital, rural health center, community care foster family home, home and community-based case management agency, adult day care center, developmental disabilities domiciliary home, adult foster home for individuals with developmental disabilities, community mental health center, and rehabilitation agency.
"Name inquiry" means a criminal history record check conducted by using the name and other identifying information of the individual, in lieu of a fingerprint check.
"Operator" means an individual or entity that is licensed or is seeking licensure to operate a healthcare facility and is responsible for the management and overall operations of that healthcare facility.
"Relevant crime" means:
(1) Any offense described in 42 United States Code §1320a-7 (section 1128(a) of the Social Security Act); or
(2) A crime of such a serious nature or circumstance that the department finds its perpetrator to pose a risk to the health, safety, or well-being of a patient or resident. This includes but is not limited to murder, manslaughter, assault, sex offenses, domestic violence, theft or forgery, arson, kidnapping, or possession, use, sale, manufacture, or distribution of dangerous drugs or controlled substances.
(b) The department shall adopt rules pursuant to chapter 91 to ensure the reputable and responsible character of all prospective applicants, operators, direct patient access employees, and adult volunteers of a healthcare facility, and, in the case of any healthcare facility operated in a private residence, all adults living in the home other than the clients. These rules, among other things, shall specify how the department or its designee may conduct background checks in accordance with this section.
(c) All applicants and prospective operators shall:
(1) Be subject to background checks; and
(2) Provide consent to the department or its designee to conduct background checks.
(d) All prospective direct patient access employees and adult volunteers of healthcare facilities and, in the case of any healthcare facility operated in a private residence, all adults living in the home other than the clients shall:
(1) Be subject to background checks in accordance with this section; and
(2) Provide consent to the department or its designee to conduct background checks.
(e) The department or its designee shall obtain background check information in accordance with this section from an applicant or operator, on the applicant or operator, and on any prospective employees of the applicant or operator including any new employee retained after the applicant is issued a license or certificate under this part, which shall include an annual name inquiry into state criminal history record files.
(f) The department may revoke or suspend a current license or certificate, impose penalties or fines, or deny an application for a license or certificate under rules adopted pursuant to chapter 91 if the applicant, operator, employee, or adult volunteer at the healthcare facility or, in the case of any healthcare facility operated in a private residence, any adult living in the home other than the client:
(1) Refuses to authorize the department or its designee to conduct a background check, refuses to authorize the department or its designee to obtain background check record information for verification, or refuses consent to be fingerprinted;
(2) Refuses or fails to submit to the department or its designee information required to perform a background check;
(3) Has any disqualifying information; or
(4) Has any background check information that the department finds may pose a risk to the health, safety, or welfare of the residents or patients of the healthcare facility.
(g) The fee charged by the Federal Bureau of Investigation and the Hawaii criminal justice data center to perform criminal history record checks may be passed on to all applicants, operators, direct patient access employees, and adult volunteers at the healthcare facility and, in the case of a facility operated in a private residence, all adults living in the home other than the clients.
(h) The department or its designee, in obtaining and relying upon the background check information, is presumed to be acting in good faith and shall be immune from civil liability for taking or recommending action based upon the background check information. The presumption of good faith may be rebutted upon a showing of proof by a preponderance of the evidence that the department or its designee relied upon information or opinion that it knew was false or misleading or that such reliance was not reasonable.
(i) Any applicant or operator who receives information from the department or its designee relating to a background check of a direct patient access employee or adult volunteer or, in the case of a healthcare facility operated in a private residence, an adult living in the home other than the clients, is presumed to be acting in good faith and shall be immune from civil liability for reasonably taking or recommending action based upon the department's recommendation or direction. Nothing in this section shall affect rights, obligations, remedies, liabilities, or standards of proof under chapters 368 and 378.
Background check record information shall be used exclusively by the department or its designee for the sole purpose of determining whether an applicant, operator, direct patient access employee, or adult volunteer at a healthcare facility, or, in the case of a facility operated in a private residence, any adult living in the home other than the clients is suitable for working or living in close proximity to residents of a healthcare facility such that the health, safety, and welfare of the residents would not be at risk. [L 2006, c 220, §2; am L Sp 2009, c 21, §5; am L 2011, c 220, §11; am L 2012, c 285, §2; am L 2015, c 190, §1]
Note
The 2011 amendment is exempt from the repeal and reenactment condition of L Sp 2009, c 21. L 2011, c 220, §20.
The 2015 amendment to the definition of "healthcare facility" is exempt from the repeal and reenactment condition of L Sp 2009, c 21, §8, as amended by L 2014, c 125, §2. L 2015, c 190, §12.
L 2006, c 220, §6 provides:
"SECTION 6. There shall be established a working committee of five members with representatives from the department of health, department of human services, provider organizations and community, as appointed by the directors of the department of health and department of human services to meet minimally on a quarterly basis to review and evaluate the process undertaken by the departments in effecting criminal history record checks and provide recommendations to the directors of the departments as relevant. Members shall serve a term of two years which may be extended at the discretion of the directors of the departments and will report to departmental administrators as designated by the directors."
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