[C.  General Provisions]

 

§346-97  Criminal history record checks. (a)  For the purposes of this section:

"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 search by name, and other identifying information, usingthe state computerized criminal history record information system.

″Department″ means the departmentof human services.

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

"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 establishing standards regarding the reputable and responsiblecharacter of service providers who have direct contact with individualsreceiving services under this part, including:

(1)  Licensed adult day care center operators,employees, new employees, subcontracted service providers and their employees,and adult volunteers;

(2)  Purchase of service contracted and subcontractedservice providers and their employees serving clients of the adult andcommunity care services branch;

(3)  Foster grandparent program, retired and seniorvolunteer program, senior companion program, and respite companion programparticipants; and

(4)  Contracted and subcontracted service providersand their employees and new employees who provide home and community-basedservices under Section 1915(c) of the Social Security Act (42 U.S.C.§1396n(c)), or under any other applicable section or sections of the SocialSecurity Act for the purposes of providing home and community-based services.

(c)  Individuals identified in subsection (b)shall:

(1)  Meet the standards regarding the reputable andresponsible character of service providers;

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

(3)  Shall sign a waiver form stating that thedepartment shall not be liable to the individual; and

(4)  Provide consent to the department or its designeeto obtain criminal history record information for verification.

New employees and adult volunteers shall consent tobe fingerprinted, shall supply the necessary information to enable the criminalhistory record check prior to the start of employment or volunteering, andshall sign a waiver form stating that the department shall not be liable to theemployee or volunteer.

(d)  The department or its designee shallobtain criminal history record information through the Hawaii criminal justicedata center on individuals identified in subsection (b) for the first two yearsthat an individual identified in subsection (b) is required to have suchchecks, and shall conduct a criminal history record name inquiry into the statecriminal history records annually or biennially thereafter.

(e)  The department may take appropriate actionif it finds that the criminal history of the individual identified undersubsection [(b)] may pose a risk to the health, welfare, and safety of servicerecipients.  Such action may include:

(1)  Denying a certificate of approval to operate anadult day care center; or

(2)  Refusing to use an individual as a serviceprovider.

(f)  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.

(g)  The costs of processing fingerprints andthe state criminal history record checks may be borne by the employer or by theemployee or individual who is being screened.

(h)  The department, in obtaining and relyingupon the results of the state criminal history record checks, is presumed to beacting in good faith and shall be immune from civil liability for taking orrecommending action based upon the criminal history record information.  Thegood faith presumption may be rebutted upon a showing by the person or entityalleging a lack of good faith, and by a preponderance of the evidence, that thedepartment relied upon information or opinion that it knew was false ormisleading.

(i)  Nothing in this section shall affect therights, obligations, remedies, liabilities, or standards of proof underchapters 368 and 378.

(j)  The criminal history record informationobtained under this section shall be used exclusively by the department for thepurpose of establishing the reputable and responsible character of theindividuals identified in subsection (b) such that the health, welfare, andsafety of service recipients will not be at risk. [L 2006, c 220, §3; am L2008, c 136, §3]

 

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."