2012 -- S 2904 SUBSTITUTE A

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LC02404/SUB A

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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 CRIMINAL PROCEDURE - NATIONAL CRIMINAL RECORDS CHECK

SYSTEM

     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. Section 12-1-4 of the General Laws in Chapter 12-1 entitled "Identification

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and Apprehension of Criminals" is hereby amended to read as follows:

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     12-1-4. Division of criminal identification -- Chief and assistants. – (a) There shall be

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a division of criminal identification in the department of the attorney general to be in charge of a

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chief who shall be appointed by the attorney general to serve at the pleasure of the attorney

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general, and who shall devote all of his or her time to the duties of his or her office. The chief

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with the approval of the attorney general may appoint any assistants that he or she may deem

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necessary to carry out the work of the division, within the limits of any appropriation made for

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that purpose, and may with the approval of the attorney general discontinue the employment of

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any assistants at any time. The chief shall perform the functions required by the provisions of this

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chapter. In addition to availability of records to law enforcement agencies and officers, the

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records shall be made available to any attorney of record in any criminal action, and any officials

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of businesses which are required by federal or state law or regulation to effectuate a criminal

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background check of potential or prospective employees. The information shall be confidential

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and shall be used only by the employer for the employee's application of employment.

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     (b) The department of attorney general may establish and maintain an automated

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fingerprint identification system database that would allow the department to store and maintain

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all fingerprints submitted in accordance with a national criminal records check system. The

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automated fingerprint identification system database would provide for an automatic notification

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if and when a subsequent criminal arrest fingerprint card submitted into the system matches a set

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of fingerprints previously submitted in accordance with a national criminal records check. If the

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aforementioned arrest results in a conviction, the department shall immediately notify those

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individuals and entities with which that individual is associated, who are required to be notified of

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disqualifying information concerning national criminal records checks under these general laws.

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The information in the database established under this section is confidential and is not subject to

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

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      (c) The department of the attorney general or the department of health shall maintain an

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electronic web-based system to assist facilities, licensed under chapters 23-17, 23-17.4, 23-17.7.1

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or section 23-1-52, required to check relevant registries and conduct criminal records checks of

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direct patient access applicants. The department of the attorney general or the department of

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health shall provide for an automated notice, as authorized in subsection 12-1-4(b), to those

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facilities if a direct patient access employee is subsequently convicted of a disqualifying offense,

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as described in the relevant licensing statute. The department of the attorney general or the

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department of health may charge a facility a one-time set up fee of up to one hundred dollars

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

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      (d) The department of attorney general, the department of health, or an employer who

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disqualifies an applicant from employment or continued employment on the basis of a

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disqualification notice as described in subsection 12-1-4(c) or of a criminal records check relating

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

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

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     SECTION 2. Section 23-1-52 of the General Laws in Chapter 23-1 entitled "Department

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of Health" is hereby amended to read as follows:

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     23-1-52. Adult day care program licensure. – (a) The director is authorized and

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directed to establish a program for the licensure of adult day care programs. "Adult day care

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program" shall mean a comprehensive, nonresidential program designed to address the biological,

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psychological, and social needs of adults through individual plans of care that incorporate, as

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needed, a variety of health, social and related support services in a protective setting. The director

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is further authorized to promulgate regulations as he or she deems necessary to implement these

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provisions.

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     (b) Any person seeking employment in any adult day care facility licensed herein and

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having routine contact with an adult day care client or having access to such a client’s belongings

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or funds shall undergo a national criminal records check, which shall include fingerprints

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submitted to the federal bureau of investigation (FBI) by the bureau of criminal identification of

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the department of the attorney general or a designated vendor approved by the department of the

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attorney general. The national criminal records check shall be processed prior to or within one

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week of employment. All persons who, as of July 1, 2013, are already employed by an adult day

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care facility and all persons who, as of such date, already provide services under this section shall

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be exempted from the requirements of this section for purposes of their current employment only.

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     (1) The director may by rule, identify those positions requiring national criminal records

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

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of the department of the attorney general for a national criminal records check. Upon the

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discovery of any disqualifying information as defined in sections 23-1-52(c) and in accordance

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with rules promulgated by the director, the bureau of criminal identification of the department of

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the attorney general shall 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, shall notify the

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employer in writing that disqualifying information has been discovered.

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     (2) An employee against whom disqualifying information has been found may provide a

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copy of the national criminal records check to the employer. The administrator shall make a

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judgment regarding the continued employment of the employee.

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

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of criminal identification of the department of the attorney general shall inform the applicant and

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the employer in writing of this fact.

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

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

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employment between January 1, 2008 and June 30, 2013, and the results of the checks. The

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employer shall maintain on file, subject to inspection by the department, evidence that national

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criminal records checks have been initiated on all employees seeking employment on or after July

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1, 2013, and the results of those checks. Failure to maintain that evidence may be grounds to

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revoke the license or registration of the employer.

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     (5) The employee or employer shall be responsible for the cost of conducting the national

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criminal records check through the bureau of criminal identification of the department of the

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attorney general or a vendor designated by the department of the attorney general.

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     (c) Information produced by a national criminal records check pertaining to conviction,

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for the following crimes will result in a letter to the employee and employer disqualifying the

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applicant from employment: murder, voluntary manslaughter, involuntary manslaughter, first

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degree sexual assault, second degree sexual assault, third degree sexual assault, assault on persons

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sixty (60) years of age or older, assault with intent to commit specified felonies (murder, robbery,

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rape, burglary, or the abominable and detestable crimes against nature), felony assault, patient

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abuse, neglect or mistreatment of patients, burglary, first degree arson, robbery, felony drug

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offenses, felony obtaining money under false pretenses, felony embezzlement, abuse, neglect

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and/or exploitation of adults with severe impairments, exploitation of elders, felony larceny, or

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felony banking law violations, or a crime under section 1128(a) of the Social Security Act (42

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U.S.C. section 1320a-7(a)). An employee against whom disqualifying information has been

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found may provide a copy of the national criminal records check to the employer who shall make

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a judgment regarding the continued employment of the employee. For purposes of this

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subsection, “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 with the attorney general.

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     SECTION 3. Section 23-17-34 and 23-17-37 of the General Laws in Chapter 23-17

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entitled "Licensing 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 person seeking employment in a nursing facility,

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a home nursing care provider, hospice provider or a home care provider which is or is required to

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be licensed, registered or certified with the department of health if that employment involves

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

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national criminal background records check which shall include fingerprints submitted to the

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federal bureau of investigation (FBI) by the bureau of criminal identification of the department of

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the attorney general or a designated vendor approved by the department of the attorney general.

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The national criminal records check shall to be initiated prior to or within one week of

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employment. All employees hired prior to the enactment of this section shall be exempted from

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the requirements of this section. All persons who, as of July 1, 2013, are already employed by a

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covered facility or provider and all persons who, as of such date, already provide services under

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this chapter shall be exempted from the requirements of this section for purposes of their current

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employment only.

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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 records checks. The identified employee, through the employer,

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shall apply to the bureau of criminal identification of the state police or local police department of

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the attorney general for a statewide national criminal records check. Fingerprinting shall not be

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required. Upon the discovery of any disqualifying information as defined in section 23-17-37 and

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in accordance with the rule promulgated by the director of health, or the bureau of criminal

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identification of the state police or the local police department of the attorney general will inform

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the applicant, in writing, of the nature of the disqualifying information; and, without disclosing

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the nature of the disqualifying information, will notify the employer, in writing, that disqualifying

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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 provide a copy of the national criminal background report be sent records check to the

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employer 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 department of the attorney general

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shall inform the applicant 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

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

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seeking employment after between October 1, 1991, and June 30, 2013 and the results of the

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checks. The employer shall maintain on file, subject to inspection by the department of health,

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

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employment on or after July 1, 2013, and the results of those checks. Failure to maintain that

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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 The employee or the employer. shall be responsible for

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the cost of conducting the national criminal records check through the bureau of criminal

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identification of the department of the attorney general or a vendor designated by the department

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of the attorney general.

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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, 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 the

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social security act (42 U.S.C. section 1320a-7(a)). An employee against whom disqualifying

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information has been found may request that provide a copy of the national criminal background

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report be sent records check to the employer who shall make a judgment regarding the continued

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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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     SECTION 4. Chapter 23-17 of the General Laws entitled "Licensing of Health Care

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Facilities" is hereby amended by adding thereto the following section:

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     23-17-60. Criminal records review - long-term care hospital. -- (a) For the purposes of

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this section, a “long-term care hospital” shall mean a facility as described in 42 U.S.C. section

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1395ww(d)(1)(iv), which receives payment for inpatient services it provides to Medicare

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beneficiaries pursuant to 42 U.S.C. section 1395ww(m).

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     (b) Any person seeking employment in any long-term care hospital having routine

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contact with a long-term care hospital patient or having access to such a patient’s belongings or

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funds shall undergo a national criminal records check, which shall include fingerprints submitted

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to the federal bureau of investigation (FBI) by the bureau of criminal identification of the

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department of the attorney general or a designated vendor approved by the department of the

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attorney general. The national criminal records check shall be processed prior to or within one

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week of employment. All persons who, as of July 1, 2013, are already employed by a long-term

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care hospital and all persons who, as of such date, already provide services under this section

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shall be exempted from the requirements of this section for purposes of their current employment

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only.

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     (1) The director may by rule identify those positions requiring national criminal records

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

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of the department of the attorney general for a national criminal records check. Upon the

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discovery of any disqualifying information as defined in subsection 23-17-60(c) and in

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accordance with the rule promulgated by the director, the bureau of criminal identification of the

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department of the attorney general shall inform the applicant in writing of the nature of the

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

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shall notify the employer in writing that disqualifying information has been discovered.

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     (2) An employee against whom disqualifying information has been found may provide a

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copy of the national criminal records report to the employer. The administrator shall make a

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judgment regarding the continued employment of the employee.

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

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of criminal identification of the department of the attorney general shall inform the applicant and

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the employer in writing of this fact.

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     (4) The employer shall maintain on file, subject to inspection by the department, evidence

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

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between October 1, 1991 and June 30, 2013, and the results of the checks. The employer shall

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maintain on file, subject to inspection by the department, evidence that national criminal records

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checks have been initiated on all employees seeking employment on or after July 1, 2013, and the

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results of those checks. Failure to maintain that evidence would be grounds to revoke the license

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or registration of the employer.

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     (5) The employee or employer shall be responsible for the cost of conducting the national

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criminal records check through the bureau of criminal identification of the department of the

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attorney general or a vendor designated by the department of the attorney general.

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     (c) Information produced by a national criminal records check pertaining to conviction,

7-16

for the following crimes will result in a letter to the employee and employer disqualifying the

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applicant from employment: murder, voluntary manslaughter, involuntary manslaughter, first

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degree sexual assault, second degree sexual assault, third degree sexual assault, assault on persons

7-19

sixty (60) years of age or older, assault with intent to commit specified felonies (murder, robbery,

7-20

rape, burglary, or the abominable and detestable crimes against nature), felony assault, patient

7-21

abuse, neglect or mistreatment of patients, burglary, first degree arson, robbery, felony drug

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offenses, felony obtaining money under false pretenses, felony embezzlement, abuse, neglect

7-23

and/or exploitation of adults with severe impairments, exploitation of elders, felony larceny, or

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felony banking law violations, or a crime under section 1128(a) of the Social Security Act (42

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U.S.C. section 1320a-7(a)). An employee against whom disqualifying information has been

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found may provide a copy of the national criminal records check to the employer who shall make

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a judgment regarding the continued employment of the employee. For purposes of this

7-28

subsection, “conviction” means, in addition to judgments of conviction entered by a court

7-29

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 with the attorney general.

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     SECTION 5. Section 23-17.4-27 and 23-17.4-30 of the General Laws in Chapter 23-17.4

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entitled "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 person seeking employment in any

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assisted living residence licensed under this act and having routine contact with a resident or

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having access to a resident's belongings or funds shall undergo a national criminal background

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records check, which shall include fingerprints submitted to the federal bureau of investigation

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(FBI) by the bureau of criminal identification of the department of the attorney general or a

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designated vendor approved by the department of the attorney general. The national criminal

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records check shall to be processed prior to or within one week of employment. All employees

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

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section. All persons who, as of July 1, 2013, are already employed by an assisted living residence

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and all persons who, as of such date, already provide services under this chapter, shall be

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exempted from the requirements of this section for purposes of their current employment only.

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

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requiring national criminal background records checks. The employee, through the employer,

8-47

shall apply to the bureau of criminal identification of the state police or local police department of

8-48

the attorney general for a statewide national criminal records check. Fingerprinting shall not be

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required. Upon the discovery of any disqualifying information as defined in section 23-17.4-30

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and in accordance with the rule promulgated by the director of health, the bureau of criminal

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identification of the state police or the local police department of the attorney general will inform

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the applicant in writing of the nature of the disqualifying information; and, without disclosing the

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nature of the disqualifying information, will notify the employer in writing that disqualifying

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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 provide a copy of the national criminal background report be sent records check to the

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employer. The administrator shall make a judgment regarding the continued employment of the

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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 department of the attorney

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general shall inform the applicant 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

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

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seeking employment after between October 1, 1991 and June 30, 2013, and the results of the

8-65

checks. The employer shall maintain on file, subject to inspection by the department of health,

8-66

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

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employment on or after July 1, 2013, and the results of those checks. Failure to maintain that

8-68

evidence would he 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

9-2

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

9-3

employment without charge to either the employee or employer. The employee or employer shall

9-4

be responsible for the cost of conducting the national criminal records check through the bureau

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of criminal identification of the department of the attorney general or a vendor designated by the

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department of the attorney general.

9-7

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

9-8

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

9-9

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

9-10

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

9-11

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

9-12

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

9-13

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

9-14

first degree arson, robbery, felony drug offenses, felony obtaining money under false pretenses,

9-15

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

9-16

exploitation of elders, felony larceny or felony banking law violations or a crime under section

9-17

1128(a) of the social security act (42 U.S.C. section 1320a-7(a)). An employee against whom

9-18

disqualifying information has been found may request that provide a copy of the national criminal

9-19

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

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the continued employment of the employee.

9-21

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

9-22

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

9-23

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

9-24

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

9-25

with the attorney general.

9-26

     SECTION 6. Section 23-17.7.1-17 and 23-17.7.1-20 of the General Laws in Chapter 23-

9-27

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

9-28

     23-17.7.1-17. Criminal records review. -- (a) Any person seeking employment in a

9-29

facility which is or is required to be licensed or registered with the department of health if that

9-30

employment involves routine contact with a patient or resident without the presence of other

9-31

employees, shall undergo a national criminal background records check, which shall include

9-32

fingerprints submitted to the federal bureau of investigation (FBI) by the bureau of criminal

9-33

identification of the department of the attorney general or a designated vendor approved by the

9-34

department of the attorney general. The national criminal records check shall be initiated prior to,

10-1

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

10-2

shall be exempted from the requirements of this section. All persons who, as of July 1, 2013, are

10-3

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

10-4

services under this chapter shall be exempt from the requirements of this section for purposes of

10-5

their current employment only.

10-6

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

10-7

requiring national criminal background records checks. The employee, through the employer,

10-8

shall apply to the bureau of criminal identification of the state police or local police department of

10-9

the attorney general for a statewide national criminal records check. Fingerprinting shall not be

10-10

required. Upon the discovery of any disqualifying information as defined in section 23-17.7.1-20

10-11

and in accordance with the rule promulgated by the director of the department of health, the

10-12

bureau of criminal identification of the state police or the local police department of the attorney

10-13

general will inform the applicant, in writing, of the nature of the disqualifying information; and,

10-14

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

10-15

writing, that disqualifying information has been discovered.

10-16

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

10-17

has been found may request that provide a copy of the national criminal background report be

10-18

sent records check to the employer who shall make a judgment regarding the continued

10-19

employment of the employee.

10-20

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

10-21

of criminal identification of the state police or the local police department of the attorney general

10-22

shall inform the applicant and the employer, in writing, of this fact.

10-23

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

10-24

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

10-25

employment between October 1, 1991 and June 30, 2013, and the results of the checks. The

10-26

employer shall maintain on file, subject to inspection by the department of health, evidence that

10-27

national criminal records checks have been initiated on all employees seeking employment on or

10-28

after July 1, 2013, and the results of those checks. Failure to maintain that evidence would be

10-29

grounds to revoke the license or registration of the employer.

10-30

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

10-31

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

10-32

employment without charge to either the employee or the employer. The employee or the

10-33

employer shall be responsible for the cost of conducting the national criminal records check

10-34

through the bureau of criminal identification of the department of the attorney general or a vendor

11-1

designated by the department of the attorney general.

11-2

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

11-3

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

11-4

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

11-5

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, 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 the

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social security act (42 U.S.C. section 1320a-7(a)).

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      (b) Information produced by a national criminal records review check pertaining to

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

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

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information related to this subsection has been found may request that provide a copy of the

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national criminal background report be sent records check to the employer who shall make a

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determination regarding the continued 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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     SECTION 7. The act shall take effect on July 1, 2013.

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LC02404/SUB A

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N A C T

RELATING TO CRIMINAL PROCEDURE - NATIONAL CRIMINAL RECORDS CHECK

SYSTEM

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     This act would expand the type of criminal records check required for persons applying

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to be direct patient access employees in a long-term facility or provider.

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     This act would take effect on July 1, 2013.

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LC02404/SUB A

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