REPORT TITLE: 
Criminal history checks


DESCRIPTION:
(1) Requires the department of health to conduct criminal
history record checks for employees, applicants, providers, and
subcontractors in positions which necessitate direct contact
with clients when providing non-witnessed direct medical, mental
health, or substance abuse services; (2) Requests that the
Legislative Reference Bureau conduct a comprehensive study on
criminal history checks; and (3) Requires the Board of Education
to create and implement rules on conducting a sex offender
registration check on persons who volunteer with the schools.
(SD1)

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                        2098
HOUSE OF REPRESENTATIVES                H.B. NO.           H.D. 2
TWENTIETH LEGISLATURE, 2000                                S.D. 1
STATE OF HAWAII                                            
                                                             
________________________________________________________________
________________________________________________________________


                     A BILL FOR AN ACT

RELATING TO CRIMINAL HISTORY.



BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

 1                              Part I.
 
 2      SECTION 1. Chapter 846, Hawaii Revised Statutes, is amended
 
 3 by adding to Part III a new section to be appropriately
 
 4 designated to read as follows:
 
 5      "§846-     Employees of the department of health, its
 
 6 providers and subcontractors; criminal history checks.  (a)  The
 
 7 department of health shall develop procedures for obtaining
 
 8 verifiable information regarding the criminal history of persons
 
 9 who are employed, seeking employment, or seeking to serve as
 
10 providers or subcontractors in positions which place them in
 
11 direct contact with clients when providing non-witnessed direct
 
12 medical, mental health, or substance abuse treatment services.
 
13 These procedures shall include but not be limited to criminal
 
14 history record checks.  For the purposes of this section,
 
15 "criminal history record check" means an examination or search
 
16 for evidence of an individual's criminal history by means of:
 
17      (1)  A search of the individual's fingerprints in the
 
18           Federal Bureau of Investigation criminal history record
 
19           files and, if found, an analysis and any other
 
20           information available pertaining thereto; and
 

 
Page 2                                                     2098
                                     H.B. NO.           H.D. 2
                                                        S.D. 1
                                                        

 
 1      (2)  A criminal history record check conducted through the
 
 2           files maintained by the Hawaii criminal justice data
 
 3           center;
 
 4 provided that the Hawaii criminal justice data center may charge
 
 5 a reasonable fee for criminal history record checks performed for
 
 6 Federal Bureau of Investigation criminal history record checks.
 
 7      (b)  Except as otherwise specified, any person who is
 
 8 employed or seeks employment with the department of health, or
 
 9 who is employed or seeks employment with a provider or
 
10 subcontractor in a position that necessitates direct contact with
 
11 clients when providing non-witnessed direct medical, mental
 
12 health, or substance abuse services shall be required to provide
 
13 to the employer or prospective employer:
 
14      (1)  A sworn statement indicating whether or not the person
 
15           has ever been convicted of an offense for which
 
16           incarceration is a sentencing option, and the details
 
17           thereof;
 
18      (2)  Written consent for the employer to conduct a criminal
 
19           history record check as provided for in subsection (a)
 
20           and to obtain other information for verification; and
 

 
 
 
 
 
 
 
Page 3                                                     2098
                                     H.B. NO.           H.D. 2
                                                        S.D. 1
                                                        

 
 1      (3)  Permission to be fingerprinted for the purpose of the
 
 2           Federal Bureau of Investigation criminal history record
 
 3           check.
 
 4 Information obtained pursuant to subsection (a) and this
 
 5 subsection shall be used exclusively by the employer or
 
 6 prospective employer for the purposes of determining whether or
 
 7 not a person is suitable for working in a position that
 
 8 necessitates direct contact with clients when providing non-
 
 9 witnessed direct medical, mental health, or substance abuse
 
10 services.  All such decisions shall be subject to federal laws
 
11 and regulations currently or hereafter in effect.
 
12      (c)  The employer or prospective employer may refuse to
 
13 employ or may terminate the employment of any employee or
 
14 applicant if the person has been convicted of an offense for
 
15 which incarceration is a sentencing option, and if the employer
 
16 or prospective employer finds by reason of the nature and
 
17 circumstances of the crime that the person poses a risk to the
 
18 health, safety, or well-being of clients receiving non-witnessed
 
19 direct medical, mental health, or substance abuse services.  Such
 
20 refusal or termination may occur only after appropriate
 
21 investigation, notification of results and planned action, and
 
22 opportunity to meet and rebut the finding, all of which need not
 
23 be conducted in accordance with chapter 91.
 

 
Page 4                                                     2098
                                     H.B. NO.           H.D. 2
                                                        S.D. 1
                                                        

 
 1      (d)  This section shall not be used by the department of
 
 2 health to secure criminal history record checks on persons who
 
 3 have been employed continuously on a salaried basis prior to July
 
 4 1, 2000.
 
 5      (e)  Nothing in this section shall prohibit criminal history
 
 6 record checks on employees of all providers and subcontractors.
 
 7      (f)  For the purpose of this section:
 
 8      "Provider" means any organization or individual that intends
 
 9 to enter into a contract with or is currently contracted by the
 
10 department of health to provide direct medical, mental health, or
 
11 substance abuse treatment services to the department's eligible
 
12 clients.
 
13      "Subcontractor" means any organization or individual that
 
14 enters into a contract or agreement with a provider to provide
 
15 direct medical, mental health, or substance abuse treatment
 
16 services to the department's eligible clients.
 
17      (g)  For the purpose of this section, notwithstanding any
 
18 other law to the contrary, the department of health shall be
 
19 exempt from section 831-3.1 and need not conduct its
 
20 investigations, notifications, or hearings in accordance with
 
21 chapter 91."
 

 
 
 
 
 
Page 5                                                     2098
                                     H.B. NO.           H.D. 2
                                                        S.D. 1
                                                        

 
 1                             Part II.
 
 2      SECTION 2.  The legislative reference bureau, in
 
 3 consultation with the department of the attorney general, shall
 
 4 conduct a study concerning criminal history record checks.  The
 
 5 legislative reference bureau shall consider:
 
 6      (1)  A review of the legal ramifications, including
 
 7           conflicts of law and specific constitutional
 
 8           protections, of requiring criminal history record
 
 9           checks;
 
10      (2)  A summary of existing federal, state, and county
 
11           requirements involved with respect to criminal history
 
12           record checks;
 
13      (3)  A review of the manner in which employers may conduct
 
14           criminal history record checks, including an
 
15           examination of private school employers;
 
16      (4)  A framework for determining the classes of employees or
 
17           types of industries that should be subjected to
 
18           criminal history record checks; 
 
19      (5)  Recommendations for addressing the issue of criminal
 
20           history record checks and proposed legislation, if
 
21           applicable; and
 

 
 
 
 
 
Page 6                                                     2098
                                     H.B. NO.           H.D. 2
                                                        S.D. 1
                                                        

 
 1      (6)  The feasibility of making Hawaii an "open records"
 
 2           state, which would allow the general public, including
 
 3           non-criminal justice agencies, to receive state non-
 
 4           conviction information.
 
 5      The legislative reference bureau shall submit a report of
 
 6 its study to the legislature no later than twenty days before the
 
 7 convening of the Regular Session of 2001.
 
 8                             Part III.
 
 9      SECTION 3.  The board of education, in consultation with the
 
10 superintendent of education and the department of the attorney
 
11 general, shall adopt a policy to require the department of
 
12 education to access sex offender registration information,
 
13 currently available to the general public, in order to evaluate
 
14 individuals who volunteer in the public schools and whom the
 
15 board of education determines may pose a risk to the safety and
 
16 well-being of the children based upon their volunteer assignment
 
17 within the school.  The board of education shall adopt such a
 
18 policy no later than January 1, 2002, to address the growing
 
19 public concerns expressed to the legislature during the 2000
 
20 legislative session regarding this issue.  The board of education
 
21 shall consider the use of additional technology or services
 
22 necessary to ensure compliance with such policy, including
 
23 accessing the upcoming website of the Hawaii criminal justice
 

 
Page 7                                                     2098
                                     H.B. NO.           H.D. 2
                                                        S.D. 1
                                                        

 
 1 data center to obtain the relevant information.  The board of
 
 2 education shall submit a report to the legislature no later than
 
 3 twenty days prior to the convening of the 2001 regular session,
 
 4 regarding the adoption and implementation of this policy, any
 
 5 public response to the policy, any additional resources necessary
 
 6 to implement the policy, and any legislation necessary to support
 
 7 or enforce the policy.
 
 8                             Part IV.
 
 9      SECTION 4.  Statutory material to be repealed is bracketed.
 
10 New statutory material is underscored.
 
11      SECTION 5.  This Act shall take effect upon its approval.