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



"Adults" means individuals aged
eighteen years or older.



"Applicant" means a person or entity
seeking 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 these
individuals will have access to or contact with clients, their finances,
assets, personal property, medical records, or individually identifiable
information.



"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, 2014.  L Sp 2009, c 21, §8.] means a facility or
setting where a frail, elderly, or disabled adult receives care or is provided
living accommodations 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 the mentally retarded, hospital, rural 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 may conduct criminal history record checks in accordance with
section 846-2.7.



(c)  All applicants and prospective operators
shall: 



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



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



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



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



(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)  Consent to be fingerprinted;



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



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



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



(f)  The department shall make a name inquiry
into the criminal history records or conduct criminal history record checks of
all prospective applicants, operators, direct patient access employees, and
adult volunteers at the 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.



(g)  The department may revoke or suspend a current
license, impose penalties or fines, or deny an application for a license 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, refuses to authorize the department to conduct a criminal
history record check, obtain criminal history record information for
verification, or consent to be fingerprinted.  In addition, the department may
revoke or suspend a current license, impose penalties or fines, or deny an
application for a license if the applicant, operator, direct patient access
employee, or adult volunteer at the healthcare facility, or, in the case of a healthcare
facility operated in a private residence, any adult living in the home other
than the client, has any disqualifying information.  The department may also
revoke or suspend a current license, impose penalties or fines, or deny an
application for a license if the department determines, based upon
consideration of the criminal history information, that the applicant,
operator, direct patient access employee, or adult volunteer at the healthcare
facility, or, in the case of a healthcare facility operated in a private
residence, any adult living in the home other than the client, is unsuitable to
work or live in close proximity to the residents of the healthcare facility
such that the health, safety, and welfare of the residents of the healthcare
facility could be at risk.



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



(i)  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.



(j)  The department, in obtaining and relying
upon the criminal history record checks, is presumed to be acting in good faith
and shall be immune from civil liability for taking or recommending action
based upon the criminal history record information.  The good faith presumption
may 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 upon
information or opinion that it knew was false or misleading.



(k)  Any applicant or operator who receives
information from the department relating to a criminal history record 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 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.



Criminal history record information shall be
used exclusively by the department 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]



 



Note



 



  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."