HRS § 346-97 - Criminal history record checks

(a) For the purposes of this section: "Conviction for a relevant crime" means any federal or state conviction for any relevant crime as defined in this section. "Criminal history record name inquiry" means a search by name, and other identifying information, using the state computerized criminal history record information system. ″Department″ means the department of human services. ″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. "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 establishing standards regarding the reputable and responsible character of service providers who have direct contact with individuals receiving services under this part, including: (1) Purchase of service contracted and subcontracted service providers and their employees serving clients of the adult protective and community services branch; (2) The foster grandparent program, senior companion program, and respite companion program participants; and (3) Contracted and subcontracted service providers and their employees and new employees who provide home and community-based services under section 1915(c) of the Social Security Act (42 U.S.C. §1396n(c)), or under any other applicable section or sections of the Social Security Act for the purposes of providing home and community-based services. (c) Individuals identified in subsection (b) shall: (1) Meet the standards regarding the reputable and responsible character of service providers; (2) Be subject to criminal history record checks in accordance with section 846-2.7; (3) Shall sign a waiver form stating that the department shall not be liable to the individual; and (4) Provide consent to the department or its designee to obtain criminal history record information for verification. New employees and adult volunteers shall consent to be fingerprinted, shall supply the necessary information to enable the criminal history record check prior to the start of employment or volunteering, and shall sign a waiver form stating that the department shall not be liable to the employee or volunteer. (d) The department or its designee shall obtain criminal history record information through the Hawaii criminal justice data center on individuals identified in subsection (b) for the first two years that an individual identified in subsection (b) is required to have such checks, and shall conduct a criminal history record name inquiry into the state criminal history records annually or biennially thereafter. (e) The department may take appropriate action if it finds that the criminal history of the individual identified under subsection (b) may pose a risk to the health, welfare, and safety of service recipients. An action may include refusing to use an individual as a service provider. (f) Notwithstanding any other law to the contrary, for purposes of this section, the department shall be exempt from section 831-3.1 and need not conduct investigations, notifications, or hearings under this section in accordance with chapter 91. (g) The costs of processing fingerprints and the state criminal history record checks may be borne by the employer or by the employee or individual who is being screened. (h) The department, in obtaining and relying upon the results of the state criminal history record checks, is presumed to be acting in good faith and shall be immune from civil liability for taking or recommending action based upon the criminal history record information. The good faith presumption may be rebutted upon a showing by the person or entity alleging a lack of good faith, and by a preponderance of the evidence, that the department relied upon information or opinion that it knew was false or misleading. (i) Nothing in this section shall affect the rights, obligations, remedies, liabilities, or standards of proof under chapters 368 and 378. (j) The criminal history record information obtained under this section shall be used exclusively by the department for the purpose of establishing the reputable and responsible character of the individuals identified in subsection (b) such that the health, welfare, and safety of service recipients will not be at risk. [L 2006, c 220, §3; am L 2008, c 136, §3; am L 2012, c 93, §4; am L 2015, c 35, §8] Note L 2006, c 220, §6 provides: "SECTION 6. There shall be established a working committee of five members with representatives from the department of health, department of human services, provider organizations and community, as appointed by the directors of the department of health and department of human services to meet minimally on a quarterly basis to review and evaluate the process undertaken by the departments in effecting criminal history record checks and provide recommendations to the directors of the departments as relevant. Members shall serve a term of two years which may be extended at the discretion of the directors of the departments and will report to departmental administrators as designated by the directors."