2012 -- S 2904

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LC02404

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STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2012

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A N A C T

RELATING TO STATE AFFAIRS AND GOVERNMENT

     Introduced By: Senator Michael J. McCaffrey

     Date Introduced: April 26, 2012

     Referred To: Senate Judiciary

It is enacted by the General Assembly as follows:

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     SECTION 1. Title 42 of the General Laws entitled "STATE AFFAIRS AND

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GOVERNMENT" is hereby amended by adding thereto the following chapter:

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     CHAPTER 9.4

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CRIMINAL BACKGROUND CHECK ACT

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     42-9.4-1. Definitions. – As used in this chapter:

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     (1) “Adult” means a person eighteen (18) years of age or older.

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     (2) “Applicant” or “Direct Patient Access Applicant” means a person applying to be a

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direct patient access employee at a covered facility or a person providing services under chapter

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40-8.1.

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     (3) “Attorney General” means the attorney general of the state of Rhode Island, or his or

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her designee.

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     (4) “Criminal Background Check” means a national criminal records check that shall

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include fingerprints submitted to the federal bureau of investigation (FBI).

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     (5) "Conviction" means, in addition to judgments of conviction entered by a court

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subsequent to a finding of guilty or a plea of guilty, those instances where the defendant has

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entered a plea of nolo contendere and has received a sentence of probation and those instances

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where a defendant has entered into a deferred sentence agreement.

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     (6) “Covered Facility” means:

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     (i) A nursing facility; a home nursing care provider; a home care provider; or a hospice

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service that is or is required to be licensed, registered or certified with the state pursuant to

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chapter 23-17;

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     (ii) An assisted living residence that is or is required to be licensed with the state pursuant

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to chapter 23-17.4;

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     (iii) A nursing services agency that is or is required to be licensed with the state pursuant

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to chapter 23-17.7.1;

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     (iv) Any facility or program licensed by the department of behavioral healthcare,

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developmental disabilities and hospitals pursuant to chapter 40.1-24;

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     (v) Any facility or program operated by the department of behavioral healthcare,

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developmental disabilities and hospitals; and

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     (vi) Any other long-term care facility or provider.

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     (7) “Day(s)” means calendar days.

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     (8) “Department” means the Rhode Island department of attorney general.

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     (9) “BCI” means the bureau of criminal identification of the department of attorney

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general.

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     (10) “Direct Patient Access Employee” means:

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     (i) A person who has access to a patient or resident of a covered facility through

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employment or through a contract with such covered facility and has duties that involve or may

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involve one-on-one contact with a patient or resident of the covered facility; or

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     (ii) A person who has access to the belongings or funds of a patient or resident of a

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covered facility through employment or through a contract with such covered facility.

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     (iii) These provisions do not include volunteers unless the volunteer has duties that are

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equivalent to the duties of a direct patient access employee and those duties involve or may

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involve one-on-one contact with a patient or resident of the covered facility.

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     (11) “EOHHS” means the Rhode Island executive office of health and human services, or

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its designee.

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     (12) “Livescan Vendor” means an entity whose equipment has been certified by the

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department to collect an individual’s demographics and inkless fingerprints and, in a manner

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prescribed by the department, electronically transmit the fingerprints and a daily file of required

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data to the department. The department shall negotiate a contract with one or more vendors that

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effectively demonstrate that the vendor has demonstrated sufficient experience transmitting

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fingerprints electronically to the department and that the vendor can successfully transmit the

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required data in a manner prescribed by the department.

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     (13) “Long-term Care Facility or Provider” means a facility or provider that receives

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payment for services under title XVIII or XIX of the Social Security Act and is:

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     (i) A long-term care hospital (as described in section 1886(d)(1)(B)(iv) of the Social

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Security Act (42 U.S.C. 1395ww(d)(1)(B)(iv));

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     (ii) A provider of personal care services as defined in the state’s waiver under Title XIX

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of the Social Security Act relating to the provision of home and community-based services;

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     (iii) A provider of adult day care; or

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     (iv) An intermediate care facility for the mentally retarded (as defined in section 1905(d)

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of the Social Security Act (42 U.S.C. 1396d(d)).

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     (14) “Provisionally employed” means that the applicant is employed by a covered facility

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or provides services as provided in chapter 40-8.1, during a period of time after the applicant’s

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fingerprints have been submitted for the processing of a criminal background check, but before

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the results of the criminal background check have been received. During this time, the applicant

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shall not have supervisory or disciplinary power or routine contact with patients or residents

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without the presence of others.

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     42-9.4-2. Criminal Background Check. – (a) Any adult person seeking employment in

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any covered facility as a direct patient access employee or who provides services as a direct

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patient access employee as provided in chapter 40-8.1, whether compensated or not, shall

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undergo a criminal background check to be processed prior to employment or providing such

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services, except as otherwise provided in this section. All persons who, as of January 1, 2013, are

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already employed by a covered facility and all persons who, as of such date, already provide

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services under chapter 40-8.1 shall be exempted from the requirements of this section for

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purposes of their current employment only.

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     (b) The applicant shall apply to the BCI for a criminal background check. The BCI may

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utilize a Livescan vendor as a designee to fulfill the requirements of this chapter.

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     (c) If the results of the criminal background check have not been received within seven

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(7) days, upon verification that an applicant has submitted his or her fingerprints for the

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processing of a criminal background check, the applicant may be provisionally employed by the

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covered facility or provide services under chapter 40-8.1 until the results of the criminal

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background check are completed, but in no case may this exceed sixty (60) days.

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     (d) Upon the discovery of any disqualifying information, as defined in section 42-9.4-3

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and in accordance with the rules and regulations promulgated by the department, the BCI shall

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inform the applicant of the nature of the disqualifying information; and, without disclosing the

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nature of the disqualifying information, shall notify the covered facility that disqualifying

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information has been discovered. The disqualification notice shall include notice of the

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applicant’s right to appeal the denial or termination of employment and that the applicant may

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request an appeal of denial or termination of employment as provided in section 42-9.4-4. If a

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covered facility provisionally employed an applicant as provided in subsection (c), upon the

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covered facility’s receipt of the disqualification notice, the covered facility must terminate the

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applicant’s employment within fourteen (14) days, unless the applicant requests an appeal in

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accordance with section 42-9.4-4 and, in doing so, requests to remain provisionally employed

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while the appeal is reviewed. Upon receipt of an applicant’s request to remain provisionally

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employed during the appeal process, the department or the EOHHS shall inform the relevant

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covered facility that the disqualified individual has requested an appeal and advise the covered

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facility that the individual may remain provisionally employed until the date the covered facility

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receives the department’s or EOHHS’s written decision or until the applicant has been employed

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for sixty (60) days, whichever date is earlier. In those situations in which no disqualifying

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information has been found, the BCI shall inform the applicant, the covered facility, and EOHHS

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of this fact.

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     (e) The covered facility shall initiate a criminal background check on all direct patient

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access applicants, the results of which will be maintained by the BCI. Failure to initiate criminal

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background checks on any prospective direct patient access employee would be grounds to

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revoke the license or registration of the covered facility. The covered facility shall maintain on

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file, subject to inspection by the EOHHS, evidence that criminal background checks have been

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initiated on all direct patient access employees employed by or performing services at or for the

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covered facility after the date specified in this subsection, and the results of such checks. Failure

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to maintain that evidence would be grounds to revoke the license or registration of the covered

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facility. The date specified in this subsection is either:

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     (1) October 1, 1991, if the covered facility is a nursing facility, a home nursing care

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provider, a home care provider, or an assisted living residence; or

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     (2) January 1, 2013, if the covered facility is any other type of facility, program, or

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provider.

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     (f) It shall be the responsibility of the applicant to pay for the criminal background check

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fees. The fees shall be established by rules and regulations promulgated pursuant to section 42-

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9.4-9 of this chapter.

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     42-9.4-3. Disqualifying information. – (a) Information produced by a criminal

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background check pertaining to a conviction for the following crimes will disqualify the applicant

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from employment:

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     (1) The following offenses are considered level one offenses: Murder, manslaughter, first

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degree sexual assault, second degree sexual assault, assault on persons sixty (60) years of age or

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older, assault with intent to commit specified felonies (murder, robbery, rape, burglary, or the

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abominable and detestable crime against nature), felony assault, patient abuse, neglect or

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mistreatment of patients, burglary, first degree arson, robbery, any felony involving the illegal

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manufacture, sale or delivery of a controlled substance, or possession with intent to manufacture,

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sell or deliver a controlled substance, felony obtaining money under false pretenses, felony

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embezzlement, abuse, neglect and/or exploitation of adults with severe impairments, exploitation

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of elders, felony larceny, or felony banking law violations, or a crime under section 1128(a) of

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the Social Security Act (42 U.S.C. 1320a-7(a)).

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     (2) The following offenses are considered level two offenses: Felony drug possession and

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third degree sexual assault.

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     42-9.4-4. Appeal of Denial or Termination of Employment. – (a) An applicant who

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has been denied or terminated from employment due to receiving a disqualification notice may

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appeal such denial or termination. The appeal procedure shall be dependent on whether the nature

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of the disqualification is a level one or a level two offense.

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     (b) If the applicant’s disqualification is based on a level one offense, the appeal shall be

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limited only to the accuracy of the information provided in the criminal background check.

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     (1) The applicant must submit a request for appeal in writing to the department within

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(14) days of the applicant’s receipt of the disqualification notice provided in subsection 42-9.4-

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2(d). In the request, the applicant must include a copy of his or her disqualification notice that

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identifies the specific disqualifying offense and provide evidence that he or she was not convicted

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of the disqualifying offense.

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     (2) Within thirty (30) days of receipt of the applicant’s request, the department shall

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review the applicant’s submitted materials and conduct a hearing for the applicant to demonstrate

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that the information contained in the disqualification notice was inaccurate.

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     (3) The department must deny the appeal if the applicant failed to submit a timely request

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for appeal or if the applicant fails to demonstrate that the information contained in the

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disqualification notice was inaccurate. Upon denial, the department shall notify, in writing, the

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applicant, the covered facility, and EOHHS that the disqualification was not overturned due to the

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information in the criminal background check being found accurate or because the applicant

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failed to submit a timely request.

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     (4) The department shall overturn the disqualification if it finds that the information

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provided in the criminal background check is inaccurate. If an applicant’s disqualification is

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overturned, the department shall notify the applicant, the covered facility, and EOHHS of the

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decision in writing. In such decision, the department must inform the applicant, the covered

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facility, and EOHHS that the information relied upon to disqualify the applicant was inaccurate.

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     (c) If the applicant’s disqualification is based on a level two offense, the appeal shall

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consider whether the disqualification should be overturned due to any or some combination of the

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following factors: the passage of time since the disqualifying conviction, extenuating

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circumstances surrounding the disqualifying conviction, the applicant’s demonstration of

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rehabilitation and the relevancy of the disqualifying information to the employment applied for.

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     (1) The applicant must submit the request for appeal in writing to the EOHHS within

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fourteen (14) days of the applicant’s receipt of the disqualification notice provided in subsection

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42-9.4-2(d). In the request, the applicant must include a copy of his or her disqualification notice

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that identifies the specific disqualifying offense and provide evidence that supports the factors in

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subsection (c).

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     (2) Within thirty (30) days of receipt of the applicant’s request, the EOHHS shall review

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the applicant’s submitted materials and conduct a hearing for the applicant to demonstrate that the

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disqualification should be overturned due to any or some combination of the factors in subsection

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(c).

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     (3) Upon consideration of the factors in subsection (c), if EOHHS determines that the

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applicant’s disqualification should not be overturned or the applicant failed to submit a timely

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request for appeal, the EOHHS must deny the appeal. Upon denial, the EOHHS shall notify, in

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writing, the applicant, the covered facility, and the department that the disqualification was not

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overturned and the basis for the denial.

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     (4) The EOHHS shall grant the appeal if it finds that the information contained in the

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applicant’s criminal background check and applicant’s presentation of pertinent factors in

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subsection (c) warrant that the applicant’s disqualification should be overturned. If an applicant’s

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disqualification is overturned, the EOHHS shall notify the applicant, the covered facility, and the

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department of the decision in writing and state the specific findings thereto.

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     42-9.4-5. Automated Fingerprint Identification System Database. - The department

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may establish and maintain an automated fingerprint identification system database that would

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allow the department to store and maintain all fingerprints submitted under this chapter and

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would provide for an automatic notification if and when a subsequent criminal arrest fingerprint

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card submitted into the system matches a set of fingerprints previously submitted under the

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chapter. If the aforementioned arrest results in a conviction, the department shall immediately

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notify each covered facility with which that individual is associated. The information in the

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database established under this section is confidential and is not subject to disclosure under the

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access to public records act, chapter 2 of title 38 of the general laws.

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     42-9.4-6. Electronic Web-based Registry System. – The department or EOHHS shall

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maintain an electronic web-based system to assist covered facilities required to check relevant

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registries and conduct criminal background checks of direct patient access applicants and to

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provide for an automated notice to those covered facilities for those persons inputted in the

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system who, since the initial criminal background check, have been convicted of a disqualifying

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offense or have been the subject of a substantiated finding of abuse, neglect or misappropriation

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of property. The department or EOHHS may charge a covered facility a one-time set up fee of up

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to one hundred dollars ($100) for access to the electronic web-based system under this section.

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     42-9.4-7. Immunity from liability. – The department, the EOHHS, and a covered

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facility who disqualifies an applicant from employment or continued employment on the basis of

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a disqualification notice as described in subsection 42-9.4-2(d) or of a criminal background check

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relating to disqualifying information shall not be liable for civil damages or subject to any claim,

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demand, cause of action, or proceeding of any nature as a result of the disqualification.

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     42-9.4-8. Rules and regulations. – The department and the EOHHS is authorized to

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promulgate rules and regulations to carry out the intent of this chapter.

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     SECTION 2. Section 23-17-34 of the General Laws in Chapter 23-17 entitled "Licensing

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of Health Care Facilities" is hereby amended to read as follows:

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     23-17-34. Criminal records review – Nursing facilities – Home nursing care

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providers and home care providers. – (a) Any adult person seeking employment as a direct

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patient access employee, whether compensated or not, in a nursing facility, a home nursing care

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provider, or a home care provider which is or is required to be licensed, registered or certified

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with the department of health if that employment involves routine contact with a patient or

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resident without the presence of other employees, shall undergo a criminal background check as

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provided in chapter 42-9.4 to be initiated prior to or within one week of employment. All

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employees hired prior to the enactment of this section shall be exempted from the requirements of

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this section.

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     (b) The director of the department of health may by rule identify those positions requiring

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criminal background checks. The identified employee, through the employer, shall apply to the

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bureau of criminal identification of the state police or local police department for a statewide

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criminal records check. Fingerprinting shall not be required. Upon the discovery of any

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disqualifying information as defined in § 23-17-37 and in accordance with the rule promulgated

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by the director of health, the bureau of criminal identification of the state police or the local

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police department will inform the applicant, in writing, of the nature of the disqualifying

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information; and, without disclosing the nature of the disqualifying information, will notify the

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employer, in writing, that disqualifying information has been discovered.

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     (c) An employee against whom disqualifying information has been found may request

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that a copy of the criminal background report be sent to the employer who shall make a judgment

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regarding the continued employment of the employee.

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     (d) In those situations in which no disqualifying information has been found, the bureau

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of criminal identification of the state police or the local police shall inform the applicant and the

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employer, in writing, of this fact.

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     (c)(e) The employer shall maintain on file, subject to inspection by the department of

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health, evidence that criminal records checks have been initiated on all employees seeking

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employment after October 1, 1991, and the results of the checks. Failure to maintain that evidence

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would be grounds to revoke the license or registration of the employer.

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     (f) It shall be the responsibility of the bureau of criminal identification of the state police

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or the local police department to conduct the criminal records check to the applicant for

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employment without charge to either the employee or the employer.

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     SECTION 3. Sections 23-17-37 and 23-17-39 of the General Laws in Chapter 23-17

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entitled "Licensing of Health Care Facilities" are hereby repealed.

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     23-17-37. Disqualifying information. -- (a) Information produced by a criminal records

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review pertaining to conviction, for the following crimes will result in a letter to the employee

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and employer disqualifying the applicant from employment: murder, voluntary manslaughter,

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involuntary manslaughter, first degree sexual assault, second degree sexual assault, third degree

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sexual assault, assault on persons sixty (60) years of age or older, assault with intent to commit

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specified felonies (murder, robbery, rape, burglary, or the abominable and detestable crime

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against nature) felony assault, patient abuse, neglect or mistreatment of patients, burglary, first

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degree arson, robbery, felony drug offenses, larceny, or felony banking law violations. An

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employee against whom disqualifying information has been found may request that a copy of the

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criminal background report be sent to the employer who shall make a judgment regarding the

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continued employment of the employee.

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      (b) For purposes of this section, "conviction" means, in addition to judgments of

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conviction entered by a court subsequent to a finding of guilty or a plea of guilty, those instances

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where the defendant has entered a plea of nolo contendere and has received a sentence of

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probation and those instances where a defendant has entered into a deferred sentence agreement

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with the attorney general.

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     23-17-39. Immunity from liability. -- No employer who disqualifies an individual from

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employment or continued employment within thirty (30) days of receipt of a letter containing

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disqualifying information as defined in section 23-17-37 or of a criminal background report

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relating to the individual shall be liable for civil damages or subject to any claim, demand, cause

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of action or proceeding of any nature as a result of the disqualification.

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     SECTION 4. Section 23-17.7.1-17 of the General Laws in Chapter 23-17.7.1 entitled

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"Licensing of Nursing Service Agencies" is hereby amended to read as follows:

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     23-17.7.1-17. Criminal records review. – (a) Any adult person seeking employment as

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a direct patient access employee, whether compensated or not, in a facility which is or is required

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to be licensed or registered with the department of health if that employment involves routine

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contact with a patient or resident without the presence of other employees, shall undergo a

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criminal background check as provided in chapter 42-9.4., which shall be initiated prior to, or

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within one week of, employment. All employees hired prior to the enactment of this section shall

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be exempted from the requirements of this section.

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     (b) The director of the department of health may, by rule, identify those positions

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requiring criminal background checks. The employee, through the employer, shall apply to the

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bureau of criminal identification of the state police or local police department for a statewide

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criminal records check. Fingerprinting shall not be required. Upon the discovery of any

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disqualifying information as defined in § 23-17.7.1-20 and in accordance with the rule

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promulgated by the director of the department of health, the bureau of criminal identification of

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the state police or the local police department will inform the applicant, in writing, of the nature

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of the disqualifying information; and, without disclosing the nature of the disqualifying

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information, will notify the employer, in writing, that disqualifying information has been

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discovered.

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     (c) An employee against whom disqualifying information under § 23-17.7.1-20(b) has

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been found may request that a copy of the criminal background report be sent to the employer

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who shall make a judgment regarding the continued employment of the employee.

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     (d) In those situations in which no disqualifying information has been found, the bureau

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of criminal identification of the state police or the local police shall inform the applicant and the

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employer, in writing, of this fact.

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     (e) The employer shall maintain on file, subject to inspection by the department of health,

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evidence that criminal records checks have been initiated on all employees. Failure to maintain

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that evidence would be grounds to revoke the license or registration of the employer.

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     (f) It shall be the responsibility of the bureau of criminal identification of the state police

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or the local police department to conduct the criminal records check to the applicant for

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employment without charge to either the employee or the employer.

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     SECTION 5. Sections 23-17.7.1-18, 23-17.7.1-20 and 23-17.7.1-21 of the General Laws

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in Chapter 23-17.7.1 entitled "Licensing of Nursing Service Agencies" are hereby repealed.

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     23-17.7.1-18. Prior criminal records checks. -- If an applicant for employment has

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undergone a statewide criminal records check within eighteen (18) months of an application for

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employment, then an employer may request from the bureau of criminal identification or local

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police a letter indicating if any disqualifying information was discovered. The bureau of criminal

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identification will respond without disclosing the nature of the disqualifying information. The

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letter may be maintained on file to satisfy the requirements of this chapter.

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     23-17.7.1-20. Disqualifying information. -- (a) Information produced by a criminal

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records review pertaining to conviction, for the following crimes will result in a letter to the

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employee and employer disqualifying the applicant from the employment: murder, voluntary

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manslaughter, involuntary manslaughter, first degree sexual assault, second degree sexual assault,

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third degree sexual assault, assault on persons sixty (60) years of age or older, assault with intent

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to commit specified felonies (murder, robbery, rape, burglary, or the abominable and detestable

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crime against nature), felony assault, patient abuse, neglect or mistreatment of patients, first

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degree arson, robbery, felony drug offenses, larceny, or felony banking law violations.

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      (b) Information produced by a criminal records review pertaining to convictions for

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crimes other than those listed in subsection (a) of this section shall entitle, but not obligate the

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employer to decline to hire the applicant. An employee against whom conviction information

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related to this subsection has been found may request that a copy of the criminal background

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report be sent to the employer who shall make a determination regarding the continued

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employment of the employee.

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      (c) For purposes of this section "conviction" means, in addition to judgments of

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conviction entered by a court subsequent to a finding of guilty or a plea of guilty, those instances

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where the defendant has entered a plea of nolo contendere and has received a sentence of

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probation and those instances where a defendant has entered into a deferred sentence agreement

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with the attorney general.

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     23-17.7.1-21. Immunity from liability. -- No employer who disqualifies an individual

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from employment or continued employment within thirty (30) days of receipt of a letter

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containing disqualifying information as defined in section 23-17.7.1-20 or of a criminal

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background report relating to that information shall be liable for civil damages or subject to any

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claim, cause of action, or proceeding of any nature as a result of the disqualification.

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     SECTION 6. Section 23-17.4-27 of the General Laws in Chapter 23-17.4 entitled

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"Assisted Living Residence Licensing Act" is hereby amended to read as follows:

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     23-17.4-27. Criminal records review. – (a) Any adult person seeking employment as a

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direct patient access employee, whether compensated or not, in any assisted living residence

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licensed under this act and having routine contact with a resident or having access to a resident's

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belongings or funds shall undergo a criminal background check as provided in chapter 42-9.4.to

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be processed prior to or within one week of employment. All employees hired prior to the

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enactment of this section shall be exempted from the requirements of this section.

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     (b) The director of the department of health may by rule identify those positions requiring

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criminal background checks. The employee, through the employer, shall apply to the bureau of

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criminal identification of the state police or local police department for a statewide criminal

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records check. Fingerprinting shall not be required. Upon the discovery of any disqualifying

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information as defined in § 23-17.4-30 and in accordance with the rule promulgated by the

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director of health, the bureau of criminal identification of the state police or the local police

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department will inform the applicant in writing of the nature of the disqualifying information;

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and, without disclosing the nature of the disqualifying information, will notify the employer in

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writing that disqualifying information has been discovered.

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     (c) An employee against whom disqualifying information has been found may request

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that a copy of the criminal background report be sent to the employer. The administrator shall

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make a judgment regarding the continued employment of the employee.

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     (d) In those situations in which no disqualifying information has been found, the bureau

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of criminal identification (BCI) of the state police or the local police shall inform the applicant

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and the employer in writing of this fact.

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     (e) The employer shall maintain on file, subject to inspection by the department of health,

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evidence that criminal records checks have been initiated on all employees seeking employment

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after October 1, 1991, and the results of the checks. Failure to maintain that evidence would be

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grounds to revoke the license or registration of the employer.

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     (f) It shall be the responsibility of the bureau of criminal identification (BCI) of the state

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police or the local police department to conduct the criminal records check to the applicant for

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employment without charge to either the employee or employer.

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     SECTION 7. Sections 23-17.4-28, 23-17.4-30 and 23-17.4-32 of the General Laws in

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Chapter 23-17.4 entitled "Assisted Living Residence Licensing Act" are hereby repealed.

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     23-17.4-28. Prior criminal records checks. -- If an applicant for employment has

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undergone a statewide criminal records check within eighteen (18) months of an application for

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employment, then an employer may request from the bureau of criminal identification or local

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police a letter indicating if any disqualifying information was discovered. The bureau of criminal

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identification will respond without disclosing the nature of the disqualifying information. The

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letter may be maintained on file to satisfy the requirements of this chapter.

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     23-17.4-30. Disqualifying information. -- (a) Information produced by a criminal

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records review pertaining to conviction, for the following crimes will result in a letter to the

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employee and employer disqualifying the applicant from employment: murder, voluntary

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manslaughter, involuntary manslaughter, first degree sexual assault, second degree sexual assault,

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third degree sexual assault, assault on persons sixty (60) years of age or older, assault with intent

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to commit specified felonies (murder, robbery, rape, burglary, or the abominable and detestable

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crime against nature) felony assault, patient abuse, neglect or mistreatment of patients, burglary,

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first degree arson, robbery, felony drug offenses, larceny or felony banking law violations. An

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employee against whom disqualifying information has been found may request that a copy of the

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criminal background report be sent to the employer who shall make a judgment regarding the

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continued employment of the employee.

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      (b) For purposes of this section, "conviction" means, in addition to judgments of

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conviction entered by a court subsequent to a finding of guilty or a plea of guilty, those instances

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where the defendant has entered a plea of nolo contendere and has received a sentence of

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probation and those instances where a defendant has entered into a deferred sentence agreement

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with the attorney general.

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     23-17.4-32. Immunity from liability. -- No employer who disqualifies an individual

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from employment or continued employment within thirty (30) days of receipt of a letter

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containing disqualifying information as defined in section 23-17.4-30 or of a criminal background

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report relating to disqualifying information shall be liable for civil damages or subject to any

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claim, demand, cause of action or proceeding of any nature as a result of the disqualification.

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     SECTION 8. Section 40.1-25.1-3 of the General Laws in Chapter 40.1-25.1 entitled

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"Employee Criminal Records Check" is hereby amended to read as follows:

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     40.1-25.1-3. Criminal records check requirement. – (a) Any facility or program

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licensed by the department pursuant to § 40.1-24-1 et seq. and any facility or program operated

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by the department shall require all adult applicants for employment, as a direct patient access

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employee, whether compensated or not, if that employment involves routine contact with

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patients, residents or clients without the presence of other employees, to apply to the bureau of

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criminal identification of the state police or the local police department for a nationwide criminal

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records check for a criminal background check as provided in chapter 42-9.4. The check will

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conform to the applicable federal standards, including the taking of fingerprints of the applicant.

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     (b) If any disqualifying information is discovered with respect to the applicant, the bureau

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of criminal identification of the state police or the local police department will inform the

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employer, in writing, without disclosing the nature of the disqualifying information, that an item

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of disqualifying nature has been discovered. In addition, the bureau of criminal identification of

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the state police or the local police department will inform the applicant, in writing, of the nature

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of the disqualifying information. An applicant against whom disqualifying information has been

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found may request that a copy of the criminal background report be sent to the employer who

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shall make a judgment regarding the employment of the applicant.

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     (c) In those situations in which no disqualifying information has been found, the bureau

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of criminal identification of the state police or the local police department shall inform both the

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applicant and the employer of this fact.

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     (d) The employer will maintain on file, subject to investigation by the department,

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evidence that criminal records checks in accordance with this statute have been initiated on all

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employees seeking employment after August 1, 2001 and the results of the checks. Failure to

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maintain the evidence on file will be prima facie grounds to revoke the license or certification of

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the operator of any facility or program licensed or certified by the department.

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     (e) It shall be the responsibility of the bureau of criminal identification of the state police

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or the local police department to conduct the national criminal records check for the applicant.

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     SECTION 9. Sections 40.1-25.1-4 and 40.1-25.1-5 of the General Laws in Chapter 40.1-

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25.1 entitled "Employee Criminal Records Check" are hereby repealed.

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     40.1-25.1-4. Prior criminal records check. -- If an applicant has undergone a national

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criminal records check within eighteen (18) months of an application for employment, then an

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employer may request from the bureau of criminal identification of the state police or the local

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police, a letter indicating if any disqualifying information was discovered. The bureau of criminal

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identification of the state police or the local police department shall respond without disclosing

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the nature of any disqualifying information. The letter shall be maintained on file to satisfy the

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requirements of this chapter.

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     40.1-25.1-5. Destruction of fingerprint records. -- At the conclusion of any background

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check required by this chapter, the state police or the local police department will promptly

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destroy the fingerprint card of the applicant.

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     SECTION 10. The act shall take effect on January 1, 2013.

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LC02404

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N A C T

RELATING TO STATE AFFAIRS AND GOVERNMENT

***

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     This act would create a new chapter entitled “Criminal Background Check Act” that

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would provide for national background checks for all persons applying to be direct patient access

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employees in a long-term care facility or provider, including, but not limited to, those facilities

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licensed under chapters 23-17, 23-17.4, 23-17.7.1 and 40.1-24.

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     This act would take effect upon passage.

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LC02404

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