§321-15.2  Background checks.  (a)  For

the purposes of this section:

     "Adults" means individuals aged

eighteen years or older.

     "Applicant" means a person or entity

seeking licensure or certification to operate a healthcare facility.  If the

applicant is an entity, the term "applicant" shall also include its

principals, directors, partners, managers, agents, and representatives to the

extent that any of these individuals will have access to or contact with

clients, their finances, assets, personal property, medical records, or

individually identifiable information.

     "Background check" means a review of

records stored in state or national record repositories for history of abuse,

neglect, threatened harm, or other maltreatment against children or adults, and

for any criminal history, including:

     (1)  Adult abuse perpetrator records by means of a

search of the individual's name and birth date in the state adult protective

services central registry of reported cases established in section 346-224;

     (2)  Child abuse and neglect records by means of:

         (A)  An initial name inquiry in the state child

welfare record files;

         (B)  A subsequent child abuse confirmation

history check for new hires and rehires; and

         (C)  An annual name inquiry into state child

welfare record files;

     (3)  Criminal history records in accordance with

section 846-2.7;

     (4)  Sex offender registry records;

     (5)  Certified nurse aide registry for information or

findings pursuant to section 457A-3; and

     (6)  Adult abuse perpetrator records, child abuse and

neglect records, criminal history records, sex offender registry records, and

certified nurse aide registry records of another state where a prospective

employee or adult volunteer previously resided.

     "Conviction for a relevant crime"

means any federal or state conviction for any relevant crime as defined in this

section.

     "Criminal history record name

inquiry" means a record check by name for any federal or state conviction

for any relevant crime as defined in this section.

     "Department" means the department of

health.

     "Direct patient access employee"

means any individual, including a volunteer, who has access to a patient or

resident of a healthcare facility, or any provider through employment or

through an agreement or contract with such a facility or provider.  Such

individuals include but are not limited to:  physicians, nurses, nursing

assistants, home health aides, therapists, activities personnel, and support

staff (i.e., housekeeping, dietary, etc.) who have direct access to patients or

patient belongings.

     "Disqualifying information" means a

conviction for a relevant crime or a finding of patient or resident abuse.

     "Healthcare facility" [Repeal and

reenactment on June 30, 2019.  L Sp 2009, c 21, §8; am L 2014, c 125, §2.]

means a facility, setting, or agency licensed or certified by the

department of health that provides mental health or health care services or

living accommodations to individuals, such as a skilled nursing facility,

intermediate care facility, adult residential care home, expanded adult

residential care home, assisted living facility, home health agency, home care

agency, hospice, adult day health center, special treatment facility,

therapeutic living program, intermediate care facility for individuals with

intellectual disabilities, hospital, rural health center, community care foster

family home, home and community-based case management agency, adult day care

center, developmental disabilities domiciliary home, adult foster home for

individuals with developmental disabilities, community mental health center,

and rehabilitation agency.

     "Name inquiry" means a criminal

history record check conducted by using the name and other identifying

information of the individual, in lieu of a fingerprint check.

     "Operator" means an individual or

entity that is licensed or is seeking licensure to operate a healthcare

facility and is responsible for the management and overall operations of that

healthcare facility.

     "Relevant crime" means:

     (1)  Any offense described in 42 United States Code §1320a‑7

(section 1128(a) of the Social Security Act); or

     (2)  A crime of such a serious nature or circumstance

that the department finds its perpetrator to pose a risk to the health, safety,

or well-being of a patient or resident.  This includes but is not limited to

murder, manslaughter, assault, sex offenses, domestic violence, theft or

forgery, arson, kidnapping, or possession, use, sale, manufacture, or

distribution of dangerous drugs or controlled substances.

     (b)  The department shall adopt rules pursuant

to chapter 91 to ensure the reputable and responsible character of all

prospective applicants, operators, direct patient access employees, and adult

volunteers of a healthcare facility, and, in the case of any healthcare

facility operated in a private residence, all adults living in the home other

than the clients. These rules, among other things, shall specify how the

department or its designee may conduct background checks in accordance with

this section.

     (c)  All applicants and prospective operators

shall:

     (1)  Be subject to background checks; and

     (2)  Provide consent to the department or its designee

to conduct background checks.

     (d)  All prospective direct patient access

employees and adult volunteers of healthcare facilities and, in the case of any

healthcare facility operated in a private residence, all adults living in the

home other than the clients shall:

     (1)  Be subject to background checks in accordance

with this section; and

     (2)  Provide consent to the department or its designee

to conduct background checks.

     (e)  The department or its designee shall

obtain background check information in accordance with this section from an

applicant or operator, on the applicant or operator, and on any prospective

employees of the applicant or operator including any new employee retained

after the applicant is issued a license or certificate under this part, which

shall include an annual name inquiry into state criminal history record files.

     (f)  The department may revoke or suspend a

current license or certificate, impose penalties or fines, or deny an

application for a license or certificate under rules adopted pursuant to

chapter 91 if the applicant, operator, employee, or adult volunteer at the

healthcare facility or, in the case of any healthcare facility operated in a

private residence, any adult living in the home other than the client:

     (1)  Refuses to authorize the department or its

designee to conduct a background check, refuses to authorize the department or

its designee to obtain background check record information for verification, or

refuses consent to be fingerprinted;

     (2)  Refuses or fails to submit to the department or

its designee information required to perform a background check;

     (3)  Has any disqualifying information; or

     (4)  Has any background check information that the

department finds may pose a risk to the health, safety, or welfare of the residents

or patients of the healthcare facility.

     (g)  The fee charged by the Federal Bureau of

Investigation and the Hawaii criminal justice data center to perform criminal

history record checks may be passed on to all applicants, operators, direct

patient access employees, and adult volunteers at the healthcare facility and,

in the case of a facility operated in a private residence, all adults living in

the home other than the clients.

     (h)  The department or its designee, in

obtaining and relying upon the background check information, is presumed to be

acting in good faith and shall be immune from civil liability for taking or

recommending action based upon the background check information.  The

presumption of good faith may be rebutted upon a showing of proof by a

preponderance of the evidence that the department or its designee relied upon

information or opinion that it knew was false or misleading or that such

reliance was not reasonable.

     (i)  Any applicant or operator who receives

information from the department or its designee relating to a background check

of a direct patient access employee or adult volunteer or, in the case of a

healthcare facility operated in a private residence, an adult living in the

home other than the clients, is presumed to be acting in good faith and shall

be immune from civil liability for reasonably taking or recommending action

based upon the department's recommendation or direction.  Nothing in this

section shall affect rights, obligations, remedies, liabilities, or standards

of proof under chapters 368 and 378.

     Background check record information shall be

used exclusively by the department or its designee for the sole purpose of

determining whether an applicant, operator, direct patient access employee, or

adult volunteer at a healthcare facility, or, in the case of a facility

operated in a private residence, any adult living in the home other than the

clients is suitable for working or living in close proximity to residents of a

healthcare facility such that the health, safety, and welfare of the residents

would not be at risk. [L 2006, c 220, §2; am L Sp 2009, c 21, §5; am L 2011, c

220, §11; am L 2012, c 285, §2; am L 2015, c 190, §1]

 

Note

 

  The 2011 amendment is exempt from the repeal and reenactment

condition of L Sp 2009, c 21.  L 2011, c 220, §20.

  The 2015 amendment to the definition of "healthcare

facility" is exempt from the repeal and reenactment condition of L Sp

2009, c 21, §8, as amended by L 2014, c 125, §2.  L 2015, c 190, §12.

  L 2006, c 220, §6 provides:

  "SECTION 6.  There shall be established a working

committee of five members with representatives from the department of health,

department of human services, provider organizations and community, as

appointed by the directors of the department of health and department of human

services to meet minimally on a quarterly basis to review and evaluate the

process undertaken by the departments in effecting criminal history record

checks and provide recommendations to the directors of the departments as

relevant.  Members shall serve a term of two years which may be extended at the

discretion of the directors of the departments and will report to departmental

administrators as designated by the directors."