HRS §346-97 Criminal history record checks
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]