2014 Hawaii Revised Statutes
TITLE 19. HEALTH
321. Department of Health
321-496 Criminal history record checks.

Note

Transfer of functions, duties, etc. L 2012, c 93, §§9 to 15.

Cross References

Inspections of state-licensed care facilities; public notice, see §321-1.8.

§321-496 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 health.

"Name inquiry" means a criminal history record check conducted using the name and other identifying information of the individual in lieu of a fingerprint check.

"Relevant crime" means:

(1) Any offense described in title 42 United States Code section 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 shall include but not be limited to murder; manslaughter; assault; sex offenses; domestic violence; and the use, sale, manufacture, or distribution of dangerous drugs or controlled substances.

(b) The department shall adopt rules pursuant to chapter 91 to establish standards regarding the reputable and responsible character of service providers who have direct contact with individuals receiving services under this part, including licensed adult day care center operators, employees, subcontracted service providers and their employees, and adult volunteers.

(c) Individuals identified under 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) Sign a waiver 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 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. Such action may include denying a certificate of approval to operate an adult day care center.

(f) Notwithstanding any other law to the contrary, for purposes of this section, the department shall be exempt from section 831-3.1 and shall not be required to conduct investigations, notifications, or hearings under this section in accordance with chapter 91.

(g) The employer or the employee or the individual who is being screened may bear the costs of processing fingerprints and the state criminal history record check.

(h) The department, in obtaining and relying upon the results of the state criminal history record check, shall be 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 presumption of good faith may be rebutted upon a showing by the person or entity acknowledging a lack of good faith 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) to ensure that the health, welfare, and safety of service recipients will not be at risk. [L 2012, c 93, pt of §2]