§321‑15.2  Criminal history recordchecks.  (a)  For the purposes of this section:

"Adults" means individuals agedeighteen years or older.

"Applicant" means a person or entityseeking licensure 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 theseindividuals will have access to or contact with clients, their finances,assets, personal property, medical records, or individually identifiableinformation.

"Conviction for a relevant crime"means any federal or state conviction for any relevant crime as defined in thissection.

"Criminal history record nameinquiry" means a record check by name for any federal or state convictionfor any relevant crime as defined in this section.

"Department" means the department ofhealth.

"Direct patient access employee"means any individual, including a volunteer, who has access to a patient orresident of a healthcare facility, or any provider through employment orthrough an agreement or contract with such a facility or provider.  Suchindividuals include but are not limited to:  physicians, nurses, nursingassistants, home health aides, therapists, activities personnel, and supportstaff (i.e., housekeeping, dietary, etc.) who have direct access to patients orpatient belongings.

"Disqualifying information" means aconviction for a relevant crime or a finding of patient or resident abuse.

"Healthcare facility" [Repeal andreenactment on June 30, 2014.  L Sp 2009, c 21, §8.] means a facility orsetting where a frail, elderly, or disabled adult receives care or is providedliving accommodations such as a skilled nursing facility, intermediate carefacility, adult residential care home, expanded adult residential care home,assisted living facility, home health agency, home care agency, hospice, adultday health center, special treatment facility, therapeutic living program,intermediate care facility for the mentally retarded, hospital, rural healthcenter, and rehabilitation agency.

"Name inquiry" means a criminalhistory record check conducted by using the name and other identifyinginformation of the individual, in lieu of a fingerprint check.

"Operator" means an individual orentity that is licensed or is seeking licensure to operate a healthcarefacility and is responsible for the management and overall operations of thathealthcare 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 circumstancethat 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 tomurder, manslaughter, assault, sex offenses, domestic violence, theft orforgery, arson, kidnapping, or possession, use, sale, manufacture, ordistribution of dangerous drugs or controlled substances.

(b)  The department shall adopt rules pursuantto chapter 91 to ensure the reputable and responsible character of allprospective applicants, operators, direct patient access employees, and adultvolunteers of a healthcare facility, and, in the case of any healthcarefacility operated in a private residence, all adults living in the home otherthan the clients. These rules, among other things, shall specify how thedepartment may conduct criminal history record checks in accordance withsection 846-2.7.

(c)  All applicants and prospective operatorsshall: 

(1)  Be subject to criminal history record checks inaccordance with section 846-2.7;

(2)  Authorize the disclosure to the department ofcriminal history record information;

(3)  Sign a waiver form stating that the departmentshall not be liable to the applicant or prospective operator; and

(4)  Consent to be fingerprinted for the purpose ofrequesting criminal history record information from the Federal Bureau ofInvestigation and the Hawaii criminal justice data center.

(d)  All prospective direct patient accessemployees and adult volunteers of healthcare facilities and, in the case of anyhealthcare facility operated in a private residence, all adults living in thehome other than the clients shall:

(1)  Consent to be fingerprinted;

(2)  Provide all necessary information for the purposeof enabling the department to conduct the criminal history record checks; and

(3)  Sign a waiver form stating that the departmentshall not be liable to the employee or volunteer.

(e)  The department may request criminalhistory record information which includes Federal Bureau of Investigation datathrough the Hawaii criminal justice data center on all prospective applicants,operators, direct patient access employees, and adult volunteers of healthcarefacilities.  In addition, in the case of any healthcare facility to be operatedin a private residence, the department of health may request criminal historyrecord information which includes Federal Bureau of Investigation data throughthe Hawaii criminal justice data center for all adults residing in the home whoare not clients.

(f)  The department shall make a name inquiryinto the criminal history records or conduct criminal history record checks ofall prospective applicants, operators, direct patient access employees, andadult volunteers at the healthcare facility, and, in the case of any healthcarefacility operated in a private residence, all adults living in the home otherthan the clients.

(g)  The department may revoke or suspend a currentlicense, impose penalties or fines, or deny an application for a license underrules adopted pursuant to chapter 91 if the applicant, operator, employee, oradult volunteer at the healthcare facility or, in the case of any healthcarefacility operated in a private residence, any adult living in the home otherthan the client, refuses to authorize the department to conduct a criminalhistory record check, obtain criminal history record information forverification, or consent to be fingerprinted.  In addition, the department mayrevoke or suspend a current license, impose penalties or fines, or deny anapplication for a license if the applicant, operator, direct patient accessemployee, or adult volunteer at the healthcare facility, or, in the case of a healthcarefacility operated in a private residence, any adult living in the home otherthan the client, has any disqualifying information.  The department may alsorevoke or suspend a current license, impose penalties or fines, or deny anapplication for a license if the department determines, based uponconsideration of the criminal history information, that the applicant,operator, direct patient access employee, or adult volunteer at the healthcarefacility, or, in the case of a healthcare facility operated in a privateresidence, any adult living in the home other than the client, is unsuitable towork or live in close proximity to the residents of the healthcare facilitysuch that the health, safety, and welfare of the residents of the healthcarefacility could be at risk.

(h)  Notwithstanding any other law to thecontrary, for purposes of this section, the department shall be exempt fromsection 831-3.1 and need not conduct investigations, notifications, or hearingsunder this section in accordance with chapter 91.

(i)  The fee charged by the Federal Bureau ofInvestigation and the Hawaii criminal justice data center to perform criminalhistory record checks may be passed on to all applicants, operators, directpatient access employees, and adult volunteers at the healthcare facility and,in the case of a facility operated in a private residence, all adults living inthe home other than the clients.

(j)  The department, in obtaining and relyingupon the criminal history record checks, is presumed to be acting in good faithand shall be immune from civil liability for taking or recommending actionbased upon the criminal history record information.  The good faith presumptionmay be rebutted upon a showing by the person or entity of a lack of good faith,and proof by a preponderance of the evidence, that the department relied uponinformation or opinion that it knew was false or misleading.

(k)  Any applicant or operator who receivesinformation from the department relating to a criminal history record check ofa direct patient access employee or adult volunteer or, in the case of ahealthcare facility operated in a private residence, an adult living in thehome other than the clients, is presumed to be acting in good faith and shallbe immune from civil liability for taking or recommending action based upon thedepartment's recommendation or direction.  Nothing in this section shall affectrights, obligations, remedies, liabilities, or standards of proof underchapters 368 and 378.

Criminal history record information shall beused exclusively by the department for the sole purpose of determining whetheran applicant, operator, direct patient access employee, or adult volunteer at ahealthcare 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 orliving in close proximity to residents of a healthcare facility such that thehealth, safety, and welfare of the residents would not be at risk. [L 2006, c220, §2; am L Sp 2009, c 21, §5]

 

Note

 

  L 2006, c 220, §6 provides:

  "SECTION 6.  There shall be established a workingcommittee of five members with representatives from the department of health,department of human services, provider organizations and community, asappointed by the directors of the department of health and department of humanservices to meet minimally on a quarterly basis to review and evaluate theprocess undertaken by the departments in effecting criminal history recordchecks and provide recommendations to the directors of the departments asrelevant.  Members shall serve a term of two years which may be extended at thediscretion of the directors of the departments and will report to departmentaladministrators as designated by the directors."