SB 3207: Healthcare Facilities; Background Checks; Applicants; Operators; Third-Party Employers; Department of Health

A BILL FOR AN ACT

RELATING TO BACKGROUND CHECKS.

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

     SECTION 1.  The purpose of this Act is to clarify and streamline the background check requirements for applicants, operators, employees, and volunteers at healthcare facilities.

     SECTION 2.  Section 321-15.2, Hawaii Revised Statutes, is amended to read as follows:

     "§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, including criminal history record checks obtained 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[.]; and

     (7)  Fingerprints submitted pursuant to subsection (c).

     "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"] "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:] "Employee" includes but is 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" 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 title 42 United States Code [§1320a-7] 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[.] and is rationally related to the duties and responsibilities of the position in accordance with section 378-2.5(a).  This [includes] may include 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.

     "Third-party employer" means any person or entity other than the applicant or operator that employs, contracts with, provides through an educational affiliation agreement, or otherwise retains an individual who provides services at a healthcare facility pursuant to a contract, subcontract, agreement, or other arrangement, including but not limited to a staffing agency, contractor, or subcontractor.

     (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] applicants, operators, and third-party employers may conduct background checks in accordance with this section.

     (c)  All applicants [and], prospective operators, prospective employees, prospective adult volunteers, and, in the case of any healthcare facility operated in a private residence, any adult living in the home other than the client shall:

     (1)  Be subject to background checks; [and]

     (2)  Provide consent to the [department or its designee] applicant, operator, or third-party employer to conduct background checks[.]; and

     (3)  Submit fingerprints; provided that fingerprints shall not be required for:

          (A)  Individuals who have submitted fingerprints as a condition of their licensure; and

          (B)  Adult volunteers for whom all other reviews required by this section have been completed; or

          (C)  Individuals whose duties do not involve the provision of health care services or direct physical contact with patients and whose access to patients or patient belongings is incidental, limited, or supervised.

     [(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.]

     (d)  All applicants or operators shall obtain and ensure completion of the background checks required by this section for any prospective direct patient access employee or adult volunteer; provided that for purposes of any prospective direct patient access employee of a third-party employer described under subsection (f), the applicant or operator may satisfy the requirements of this section by obtaining and maintaining the written certification required by subsection (g); provided further that the applicant or operator shall provide background check information to the department upon request.

     (e)  No applicant or operator shall employ, contract with, or permit any prospective employee to work at, or any prospective adult volunteer to serve at, a healthcare facility unless:

     (1)  The individual has completed the background check required by this section; and

     (2)  No disqualifying information is found.

     (f)  A third-party employer shall be responsible for obtaining and ensuring the completion of the background check required by this section for any prospective direct patient access employee who is employed, retained, or assigned by the third-party employer prior to assigning the direct patient access employee to work at a healthcare facility.

     (g)  An applicant or operator may satisfy the requirements of this section with respect to a prospective direct patient access employee of a third-party employer by obtaining and maintaining written certification from the third-party employer that:

     (1)  The background check required by this section has been completed; and

     (2)  No disqualifying information has been found.

The applicant or operator shall submit this information to the department upon request.

     (h)  Any inquiry into, and consideration of, conviction record information obtained pursuant to this section shall comply with section 378-2.5(a), (b), and (c), including the requirements of a rational relationship to the position, post-conditional-offer inquiry, and the time limitations set forth in section 3782.5(c).

     [(f)] (i)  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,] provide the results of a background check to the department upon request, refuses to authorize the department [or its designee] to obtain background check record information for verification, or refuses to consent to be fingerprinted[;] when required under this section;

     (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)] (j)  The fee charged [by the Federal Bureau of Investigation and the Hawaii criminal justice data center to perform criminal history record] for conducting background 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)] (k)  The department [or its designee,], applicant, operator, or third-party employer, in obtaining and relying upon the background check information[,] in accordance with this section, 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], applicant, operator, or third-party employer relied upon information or opinion that it knew was false or misleading or that such reliance was not reasonable.

     [(i)] (l)  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.] background check information obtained in accordance with this subsection or a written certification received from a third-party employer pursuant to subsection (g).  Nothing in this section shall affect rights, obligations, remedies, liabilities, or standards of proof under chapters 368 and 378.

     (m)  Background check record information obtained in accordance with subsection (l) shall be used exclusively by the department [or its designee], applicant, operator, or third-party employer 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.

     (n)  Any requirement to conduct fingerprint-based background or criminal history record checks shall apply only to individuals hired, engaged, or retained on or after July 1, 2028.  Before that date, and for all individuals regardless of hire date, healthcare facilities shall continue to complete all other elements of the required background check, including name-based criminal history inquiries and all registry and abuse-prevention checks required under state or federal law."

     SECTION 3.  Section 846-2.7, Hawaii Revised Statutes, is amended by amending subsection (b) to read as follows:

     "(b)  Criminal history record checks may be conducted by:

     (1)  The department of health or its designee on operators of adult foster homes for individuals with developmental disabilities or developmental disabilities domiciliary homes and their employees, as provided by section 321-15.2;

     (2)  The department of health or its designee on prospective employees, persons seeking to serve as providers, or subcontractors in positions that place them in direct contact with clients when providing non-witnessed direct mental health or health care services, as provided by section 321-171.5;

     (3)  The department of health [or its designee] or an applicant, operator, or third-party employer of a healthcare facility on all applicants for licensure or certification for, operators for, prospective employees, prospective adult volunteers, and all adults, except adults in care, at healthcare facilities as defined in section 321-15.2;

     (4)  The department of education on employees, prospective employees, and teacher trainees in any public school in positions that necessitate close proximity to children, as provided by section 302A-601.5;

     (5)  The counties on employees and prospective employees who may be in positions that place them in close proximity to children in recreation or child care programs and services;

     (6)  The county liquor commissions on applicants for liquor licenses, as provided by section 281-53.5;

     (7)  The county liquor commissions on employees and prospective employees involved in liquor administration, law enforcement, and liquor control investigations;

     (8)  The department of human services on operators and employees of child caring institutions, child placing organizations, and resource family homes, as provided by section 346-17;

     (9)  The department of human services on prospective adoptive parents as established under section 346‑19.7;

    (10)  The department of human services or its designee on applicants to operate child care facilities, household members of the applicant, prospective employees of the applicant, and new employees and household members of the provider after registration or licensure, as provided by section 346-154, and persons subject to section 346-152.5;

    (11)  The department of human services on persons exempt pursuant to section 346-152 to be eligible to provide child care and receive child care subsidies, as provided by section 346-152.5;

    (12)  The department of health on operators and employees of home and community-based case management agencies and operators and other adults, except for adults in care, residing in community care foster family homes, as provided by section 321-15.2;

    (13)  The department of human services on staff members of the Hawaii youth correctional facility, as provided by section 352-5.5;

    (14)  The department of human services on employees, prospective employees, and volunteers of contracted providers and subcontractors in positions that place them in close proximity to youth when providing services on behalf of the office of youth services or the Hawaii youth correctional facility, as provided by section 352D-4.3;

    (15)  The judiciary on employees and applicants at detention and shelter facilities, as provided by section 571-34;

    (16)  The department of corrections and rehabilitation on employees and prospective employees, volunteers, contract service providers, and subcontract service providers who are directly involved with the treatment and care of, or directly involved in providing correctional programs and services to, persons committed to a correctional facility, or placed in close proximity to persons committed when providing services on behalf of the department or the correctional facility, as provided by section 353-1.5, and the department of law enforcement on employees and prospective employees whose duties involve or may involve the exercise of police powers including the power of arrest, as provided by section 353C-5;

    (17)  The board of private detectives and guards on applicants for private detective or private guard licensure, as provided by section 463-9;

    (18)  Private schools and designated organizations on employees and prospective employees who may be in positions that necessitate close proximity to children; provided that private schools and designated organizations receive only indications of the states from which the national criminal history record information was provided pursuant to section 302C-1;

    (19)  The public library system on employees and prospective employees whose positions place them in close proximity to children, as provided by section 302A‑601.5;

    (20)  The State or any of its branches, political subdivisions, or agencies on applicants and employees holding a position that has the same type of contact with children, vulnerable adults, or persons committed to a correctional facility as other public employees who hold positions that are authorized by law to require criminal history record checks as a condition of employment, as provided by section 78-2.7;

    (21)  The department of health on licensed adult day care center operators, employees, new employees, subcontracted service providers and their employees, and adult volunteers, as provided by section 321-15.2;

    (22)  The department of human services on purchase of service contracted and subcontracted service providers and their employees and volunteers, as provided by sections 346-2.5 and 346-97;

    (23)  The department of human services on foster grandparent program, senior companion program, and respite companion program participants, as provided by section 346-97;

    (24)  The department of human services on contracted and subcontracted service providers and their current and prospective employees that provide home and community-based services under section 1915(c) of the Social Security Act, title 42 United States Code section 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, as provided by section 346-97;

    (25)  The department of commerce and consumer affairs on proposed directors and executive officers of a bank, savings bank, savings and loan association, trust company, and depository financial services loan company, as provided by section 412:3-201;

    (26)  The department of commerce and consumer affairs on proposed directors and executive officers of a nondepository financial services loan company, as provided by section 412:3-301;

    (27)  The department of commerce and consumer affairs on the original chartering applicants and proposed executive officers of a credit union, as provided by section 412:10-103;

    (28)  The department of commerce and consumer affairs on:

          (A)  Each principal of every non-corporate applicant for a money transmitter license;

          (B)  Each person who upon approval of an application by a corporate applicant for a money transmitter license will be a principal of the licensee; and

          (C)  Each person who upon approval of an application requesting approval of a proposed change in control of licensee will be a principal of the licensee,

          as provided by sections 489D-9 and 489D-15;

    (29)  The department of commerce and consumer affairs on applicants for licensure and persons licensed under title 24;

    (30)  The Hawaii health systems corporation on:

          (A)  Employees;

          (B)  Applicants seeking employment;

          (C)  Current or prospective members of the corporation board or regional system board; or

          (D)  Current or prospective volunteers, providers, or contractors,

          in any of the corporation's health facilities, as provided by section 323F-5.5;

    (31)  The department of commerce and consumer affairs on:

          (A)  An applicant for a mortgage loan originator license, or license renewal; and

          (B)  Each control person, executive officer, director, general partner, and managing member of an applicant for a mortgage loan originator company license or license renewal,

          as provided by chapter 454F;

    (32)  The state public charter school commission or public charter schools on employees, teacher trainees, prospective employees, and prospective teacher trainees in any public charter school for any position that places them in close proximity to children, as provided in section 302D-33;

    (33)  The counties on prospective employees who work with children, vulnerable adults, or senior citizens in community-based programs;

    (34)  The counties on prospective employees for fire department positions that involve contact with children or vulnerable adults;

    (35)  The counties on prospective employees for emergency medical services positions that involve contact with children or vulnerable adults;

    (36)  The counties on prospective employees for emergency management positions and community volunteers whose responsibilities involve planning and executing homeland security measures including viewing, handling, and engaging in law enforcement or classified meetings and assisting vulnerable citizens during emergencies or crises;

    (37)  The State and counties on employees, prospective employees, volunteers, and contractors whose position responsibilities require unescorted access to secured areas and equipment related to a traffic management center;

    (38)  The State and counties on employees and prospective employees whose positions involve the handling or use of firearms for other than law enforcement purposes;

    (39)  The State and counties on current and prospective systems analysts and others involved in an agency's information technology operation whose position responsibilities provide them with access to proprietary, confidential, or sensitive information;

    (40)  The department of commerce and consumer affairs on:

          (A)  Applicants for real estate appraiser licensure or certification, as provided by chapter 466K;

          (B)  Each person who owns more than ten per cent of an appraisal management company who is applying for registration as an appraisal management company, as provided by section 466M-7; and

          (C)  Each of the controlling persons of an applicant for registration as an appraisal management company, as provided by section 466M-7;

    (41)  The department of health or its designee on:

          (A)  Individual applicants or individuals acting on behalf of applying entities for hemp processor permits, as provided under section 328G-2; and

          (B)  All license applicants, licensees, employees, contractors, and prospective employees of medical cannabis dispensaries, and individuals permitted to enter and remain in medical cannabis dispensary facilities, as provided under sections 329D-15(a)(4) and 329D-16(a)(3);

    (42)  The department of commerce and consumer affairs on applicants for nurse licensure or license renewal, reactivation, or restoration, as provided by sections 457-7, 457-8, 457-8.5, and 457-9;

    (43)  The county police departments on applicants for permits to acquire firearms pursuant to section 134-2, on individuals registering their firearms pursuant to section 134-3, and on applicants for new or renewed licenses to carry a pistol or revolver and ammunition pursuant to section 134-9;

    (44)  The department of commerce and consumer affairs on:

          (A)  Each of the controlling persons of the applicant for licensure as an escrow depository, and each of the officers, directors, and principals who will be in charge of the escrow depository's activities upon licensure; and

          (B)  Each of the controlling persons of an applicant for proposed change in control of an escrow depository licensee, and each of the officers, directors, and principals who will be in charge of the licensee's activities upon approval of the application,

          as provided by chapter 449;

    (45)  The department of taxation on current or prospective employees or contractors who have access to federal tax information in order to comply with requirements of federal law, regulation, or procedure, as provided by section 231-1.6;

    (46)  The department of labor and industrial relations on current or prospective employees or contractors who have access to federal tax information in order to comply with requirements of federal law, regulation, or procedure, as provided by section 383-110;

    (47)  The department of human services on current or prospective employees or contractors who have access to federal tax information in order to comply with requirements of federal law, regulation, or procedure, and on current or prospective employees, volunteers, contractors, or contractors' employees or volunteers, subcontractors, or subcontractors' employees or volunteers, whose position places or would place them in close proximity to minors, young adults, or vulnerable adults, as provided by section 346-2.5;

    (48)  The child support enforcement agency on current or prospective employees, or contractors who have access to federal tax information to comply with federal law, regulation, or procedure, as provided by section 576D‑11.5;

    (49)  The department of the attorney general on current or prospective employees, contractors, contractor's employees, or subcontractors who have access to federal tax information to comply with federal law, regulation, or procedure, as provided by section 28‑17;

    (50)  The department of commerce and consumer affairs on each control person, executive officer, director, general partner, and managing member of an installment loan licensee, or an applicant for an installment loan license, as provided in chapter 480J;

    (51)  The university of Hawaii on current and prospective employees and contractors whose duties include ensuring the security of campus facilities and persons;

    (52)  The department of commerce and consumer affairs on applicants for physician licensure or license renewal, through the Interstate Medical Licensure Compact as provided by section 453B-2; and

    (53)  Any other organization, entity, or the State, its branches, political subdivisions, or agencies as may be authorized by state law."

     SECTION 4.  Statutory material to be repealed is bracketed and stricken.  New statutory material is underscored.

     SECTION 5.  This Act shall take effect on January 30, 2050.

Report Title:

Healthcare Facilities; Background Checks; Applicants; Operators; Third-Party Employers; Department of Health

Description:

Authorizes applicants, operators, and third-party employers, rather than the Department of Health, to conduct background checks of employees and adult volunteers at healthcare facilities.  Effective 1/30/2050.  (SD1)

The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent.

A BILL FOR AN ACT

relating to background checks.

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

     SECTION 1.  The purpose of this Act clarify and streamline the background check requirements for applicants, operators, employees, and volunteers at healthcare facilities.

     SECTION 2.  Section 321-15.2, Hawaii Revised Statutes, is amended to read as follows:

     "§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[.]; and

     (7)  Fingerprints submitted pursuant to subsection (c).

     "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:] "Direct patient access employee" includes but is 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" 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 title 42 United States Code [§1320a-7] 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 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.

     "Third-party employer" means any person or entity other than the applicant or operator that employs, contracts with, or otherwise retains an individual who provides services at a healthcare facility pursuant to a contract, subcontract, agreement, or other arrangement, including but not limited to a staffing agency, contractor, or subcontractor.

     (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] applicants, operators, and third-party employers may conduct background checks in accordance with this section.

     (c)  All applicants [and], prospective operators, prospective direct patient access employees, prospective adult volunteers, and, in the case of any healthcare facility operated in a private residence, any adult living in the home other than the client shall:

     (1)  Be subject to background checks; [and]

     (2)  Provide consent to the [department or its designee] applicant, operator, or third-party employer to conduct background checks[.]; and

     (3)  Submit fingerprints; provided that fingerprints shall not be required for:

          (A)  Individuals who have submitted fingerprints as a condition of their licensure; and

          (B)  Adult volunteers for whom all other reviews required by this section have been completed.

     [(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)] (d)  All applicants or operators shall obtain and ensure completion of the background checks required by this section, including background checks of any prospective direct patient access employee or adult volunteer retained after the applicant is issued a license or certification under this part; provided that for purposes of any prospective direct patient access employee of a third-party employer described under subsection (f), the applicant or operator may satisfy the requirements of this section by obtaining and maintaining the written certification required by subsection (g); provided further that the applicant or operator shall provide background check information to the department upon request.

     (e)  No applicant or operator shall employ, contract with, or permit any direct patient access employee to work at, or an adult volunteer to serve at, a healthcare facility unless:

     (1)  The individual has completed the background check required by this section; and

     (2)  No disqualifying information is found.

     (f)  A third-party employer shall be responsible for obtaining and ensuring the completion of the background check required by this section for any prospective direct patient access employee who is employed, retained, or assigned by the third-party employer prior to assigning the direct patient access employee to work at a healthcare facility.

     (g)  An applicant or operator may satisfy the requirements of this section with respect to a prospective direct patient access employee of a third-party employer by obtaining and maintaining written certification from the third-party employer that:

     (1)  The background check required by this section has been completed; and

     (2)  No disqualifying information has been found.

The applicant or operator shall submit this information to the department upon request.

     (h) Any use of background check information to make an employment decision based on conviction record information shall comply with the requirements of section 378-2.5(c), including any applicable limitation on the consideration of conviction record information.

     (i)  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,] provide the results of a background check to the department upon request, refuses to authorize the department [or its designee] to obtain background check record information for verification, or refuses to consent to be fingerprinted[;] when required under this section;

     (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)] (j)  The fee charged [by the Federal Bureau of Investigation and the Hawaii criminal justice data center to perform criminal history record] for conducting background 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)] (k)  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)] (l)  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.] background check information obtained in accordance with this subsection or a written certification received from a third-party employer pursuant to subsection (g).  Nothing in this section shall affect rights, obligations, remedies, liabilities, or standards of proof under chapters 368 and 378.

     (m)  Background check record information obtained in accordance with subsection (l) shall be used exclusively by the department [or its designee], applicant, operator, or third-party employer 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.

     (n)  An applicant, operator, or third-party employer may apply to register as a qualified entity under section 846-2.7(c) for the purposes of obtaining the background checks required by this section."

     SECTION 3.  Statutory material to be repealed is bracketed and stricken.  New statutory material is underscored.

     SECTION 4.  This Act shall take effect upon its approval.

Report Title:

Healthcare Facilities; Background Checks; Applicants; Operators; Third-Party Employers; Department of Health

Description:

Authorizes applicants, operators, and third-party employers, rather than the Department of Health, to conduct background checks of employees and adult volunteers at healthcare facilities.

The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent.

STAND. COM. REP. NO. 2293

Honolulu, Hawaii

RE:     S.B. No. 3207

        S.D. 1

Honorable Ronald D. Kouchi

President of the Senate

Thirty-Third State Legislature

Regular Session of 2026

State of Hawaii

Sir:

     Your Committee on Health and Human Services, to which was referred S.B. No. 3207 entitled:

"A BILL FOR AN ACT RELATING TO BACKGROUND CHECKS,"

begs leave to report as follows:

     The purpose and intent of this measure is to authorize applicants, operators, and third-party employers, rather than the Department of Health, to conduct background checks of employees and adult volunteers at health care facilities.

     Your Committee received testimony in support of this measure from the Healthcare Association of Hawaii, Hawaiʻi Pacific Health, Kaiser Permanente Hawaiʻi, Hawaii Health Systems Corporation, Palolo Chinese Home, Rehabilitation Hospital of the Pacific, The Queen's Health Systems, Hawaiʻi Care Choices, and one individual.

     Your Committee received testimony in opposition to this measure from the Department of the Attorney General and Department of Health.

     Your Committee received comments on this measure from the Hawaii Medical Association and one individual.

     Your Committee finds that the State's fingerprinting process being enforced by the Department of Health as part of the background check for health care workers has created significant operational challenges for hospitals, long-term care facilities, home health agencies, hospices, and other providers.  Your Committee further finds that this is the product of statutory ambiguity and implementation issues that make it difficult to apply a cost-effective, least burdensome fingerprinting process for health care providers.  This measure ensures that fingerprinting, where required, is implemented in a reasonable, cost-effective, and legally sound manner that allows health care providers to remain focused on delivering care to the State's communities.

     Your Committee acknowledges the concerns raised in testimony by the Department of the Attorney General that any statute seeking access to Federal Bureau of Investigation criminal history record information must be approved by the Federal Bureau of Investigation Criminal Justice Information Law Unit (FBI CJILU).  Your Committee notes that if this measure is adopted, the Hawaii Criminal Justice Data Center of the Department of the Attorney General is requested to submit the wording of this measure to the FBI CJILU, requesting review and approval before fingerprint-based background checks could be conducted in the State in accordance with this measure.

Your Committee has amended this measure by:

     (1)  Replacing the term "direct patient access employee" with "employee" throughout the measure;

     (2)  Inserting language to clarify that the definition of "relevant crime" includes a crime of such a serious nature or circumstance that the Department of Health finds its perpetrator to pose a risk to the health, safety, or well-being of a patient or resident and is rationally related to the duties and responsibilities of the position in accordance with section 378-2.5(a), Hawaii Revised Statutes;

     (3)  Inserting language to clarify that the definition of "third-party employer" includes any person or entity other than the applicant or operator that provides through an educational affiliation agreement an individual who provides services at a healthcare facility pursuant to a contract, subcontract, agreement, or other arrangement;

     (4)  Inserting language to exempt individuals whose duties do not involve the provision of health care services or direct physical contact with patients and whose access to patients or patient belongings is incidental, limited, or supervised from the fingerprint requirements of employees and adult volunteers at health care facilities;

     (5)  Deleting language to clarify that all applicants or operators are required to obtain and ensure completion of required background checks for any prospective employee or prospective adult volunteer;

     (6)  Deleting language that would have required any use of background check information to make an employment decision based on conviction record information to comply with the requirements of section 378-2.5(c), Hawaii Revised Statutes, including any applicable limitation on the consideration of conviction record information;

     (7)  Inserting language to require that any inquiry into, and consideration of, conviction record information obtained pursuant to section 321-15.2, Hawaii Revised Statutes, shall comply with section 378-2.5(a), (b), and (c), Hawaii Revised Statutes, including the requirements of a rational relationship to the position, post-conditional-offer inquiry, and the time limitations set forth in section 3782.5(c), Hawaii Revised Statutes;

     (8)  Clarifying that the department, applicant, operator, or third-party employer, in obtaining and relying upon the background check information in accordance with section 321-15.2, Hawaii Revised Statutes, 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;

     (9)  Clarifying that the presumption of good faith may be rebutted upon a showing of proof by a preponderance of the evidence that the department, applicant, operator, or third-party employer relied upon information or opinion that it knew was false or misleading or that such reliance was not reasonable;

    (10)  Deleting language that would have authorized an applicant, operator, or third-party employer to apply to register as a qualified entity under section 846-2.7(c), Hawaii Revised Statutes, for the purposes of obtaining the background checks required by section 321-15.2, Hawaii Revised Statutes;

    (11)  Inserting language to establish that:

          (A)  Any requirement to conduct fingerprint-based background or criminal history record checks shall apply only to individuals hired, engaged, or retained on or after July 1, 2028; and

          (B)  Before July 1, 2028, and for all individuals regardless of hire date, healthcare facilities shall continue to complete all other elements of the required background check, including name-based criminal history inquiries and all registry and abuse-prevention checks required under state or federal law;

    (12)  Amending section 846-2.7, Hawaii Revised Statutes, to clarify that the Department of Health or an applicant, operator, or third-party employer of a healthcare facility on all applicants for licensure or certification for, operators for, prospective employees, prospective adult volunteers, and all adults, except adults in care, at healthcare facilities as defined in section 321-15.2, Hawaii Revised Statutes, are authorized to conduct criminal history record checks;

    (13)  Inserting an effective date of January 30, 2050, to encourage further discussion; and

    (14)  Making technical, nonsubstantive amendments for the purposes of clarity and consistency.

     As affirmed by the record of votes of the members of your Committee on Health and Human Services that is attached to this report, your Committee is in accord with the intent and purpose of S.B. No. 3207, as amended herein, and recommends that it pass Second Reading in the form attached hereto as S.B. No. 3207, S.D. 1, and be referred to your Committee on Judiciary.

Respectfully submitted on behalf of the members of the Committee on Health and Human Services,