| 47 | | - | SECTION 1. Chapter 346, Hawaii Revised Statutes, is amended by adding a new section to part I to be appropriately designated and to read as follows: "§346-A Background checks; criminal history; scope; adults having responsibilities relating to or in close proximity to minors and vulnerable adults. (a) Notwithstanding any law to the contrary, but subject to the limitations in subsection (b), the scope of background checks specified in each of the sections listed below shall include all relevant actions of the subject individual during the individual's age of majority; provided that criminal history record checks shall only include criminal actions for which the subject was convicted: (1) Section 346-17; (2) Section 346-17.6; (3) Section 346-19.7; (4) Section 346-B; (5) Section 346-97; (6) Section 346-152.5; (7) Section 346-154; (8) Section 352-5.5; and (9) Section 352D-4.3. (b) Background checks described in subsection (a) shall not be conducted: (1) With respect to individuals who fall under the scope of a contract, unless the contract: (A) Is a new contract that takes effect after June 30, 2022; (B) Is a renewed contact and the renewal is effective after June 30, 2022; or (C) Already includes the background check requirements described in subsection (a); or (2) With respect to an employee or a prospective employee, unless the: (A) Employee's or prospective employee's first day of work or prospective first day of work occurs or would occur after June 30, 2022; (B) Employee is under consideration for a promotion or new position, and the date of promotion or transfer to the new position occurs or would occur after June 30, 2022; or (C) Employee is already working under terms that include the background check requirements described in subsection (a)." SECTION 2. Chapter 346, Hawaii Revised Statutes, is amended by adding a new section to part II to be appropriately designated and to read as follows: "§346-B Background checks; child welfare services. (a) The department shall develop procedures for obtaining verifiable information regarding the criminal history of any person who is a current or prospective employee, volunteer, principal, or contractor, or is a principal, employee, agent, or volunteer of a contractor or subcontractor who is employed or seeking employment with the department if the person will bear responsibilities for or be in close proximity to minors, young adults, or vulnerable adults who are in need of child welfare services, social services, or other benefits and services, including services intended to prevent abuse or neglect or assist youth aging out of foster care with obtaining and maintaining independent living skills, from the department. The procedures shall include criminal history record checks in accordance with section 846-2.7 and other background checks deemed necessary by the department. Information obtained pursuant to this subsection shall be used exclusively by the department for the purpose of determining whether a person is suited to bear responsibilities relating to minors or work in close proximity to minors. (b) The department may terminate or deny the employment or services of to any employee, applicant, or volunteer or terminate or refuse to secure the services of a contractor or subcontractor, its principals, employees, or volunteers if the department finds by reason of the nature and circumstances of the background investigation conducted under subsection (a) that the employee, applicant, volunteer, contractor or subcontractor, or contractor's or subcontractor's principals, employees, or volunteers are not suited to bear responsibilities relating to or work in close proximity to minors, young adults, or vulnerable adults in need of child welfare services, social services, or other benefits and services, including services intended to prevent abuse or neglect or assist youth aging out of foster care with obtaining and maintaining independent living skills from the department. Termination or denial of employment under this subsection shall only occur after appropriate notification to the employee, applicant, volunteer, principal, or contractor of the findings of the background investigation, and after the employee, applicant, volunteer, principal, or contractor is given an opportunity to respond to the findings. Nothing in this subsection shall abrogate any applicable appeal rights under chapters 76 and 89, or administrative rules of the department. (c) 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." SECTION 3. Section 346-1, Hawaii Revised Statutes, is amended by adding two new definitions to be appropriately inserted and to read as follows: ""Background check" means any criminal history record check, child abuse and neglect registry check, sex offender registry check, adult abuse perpetrator check, or other background check that analyzes relevant information regarding the suitability of a subject individual to bear responsibilities relating to or work in close proximity to minors, young adults, or vulnerable adults, as applicable. "Principal" means an individual owner, individual manager, or other individual in control of an entity that is not a natural person." SECTION 4. Section 346-17, Hawaii Revised Statutes, is amended as follows: 1. By amending subsection (f) to read: "(f) As a condition for a certificate of approval, any organization, institution, or resource family home[, including]; the principals, operators, employees, and new employees of any organization, institution, or resource family home; and all adults residing in [the] a respective resource family home, shall: (1) Meet all standards and requirements established by the department; (2) Be subject to criminal history record checks in accordance with section 846-2.7, [and] child abuse and neglect registry checks, and any other background checks deemed necessary by the department, in accordance with departmental procedures; and (3) Provide consent to the department or its designee to obtain criminal history record [and] information, child abuse and neglect registry information[.], and any other relevant background information. New employees of the organization, institution, or home shall be fingerprinted within five working days of employment." 2. By amending subsections (j) and (k) to read: "(j) The department or its designee shall request: (1) A criminal history record check through the Hawaii criminal justice data center on all principals, operators, employees, and new employees of child care institutions, child placing organizations, and resource family homes, including all adults residing in the resource family homes, subject to checks pursuant to section 846-2.7; [and] (2) A child abuse and neglect registry check on all principals, operators, employees, and new employees of child care institutions, child placing organizations, and adults residing in a resource family home subject to licensure in accordance with departmental procedures[.]; and (3) Any other background check deemed necessary by the department on the individuals referenced in paragraphs (1) and (2). (k) The department may deny a certificate of approval if a principal, an operator, an employee, or a new employee of a child care institution or child placing organization's facility, or any adult residing in a resource family home, was convicted of a crime other than a minor traffic violation involving a fine of $50 or less and if the department finds that the criminal history record [or], child abuse registry history, or any other background check of [an] the convicted person shows that the convicted person: (1) Is not suited to bear responsibilities relating to or poses a risk to the health, safety, or well-being of the children in care, if the convicted person is an operator, employee, new employee[,]; or (2) Poses a risk to the health, safety, or well-being of the children in care, if the convicted person is an adult residing in [a] the resource family home [poses a risk to the health, safety, or well-being of the children in care]." SECTION 5. Section 346-17.6, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows: "(a) [A] If the principals, employees, and volunteers of a provider have been cleared by criminal history record checks, and any other background checks deemed necessary by the department, the provider may provide no cost emergency shelter and related services to a consenting minor if the provider reasonably believes that: (1) The minor understands the significant benefits, responsibilities, risks, and limits of the shelter and services and can communicate an informed consent; (2) The minor understands the requirements and rules of the shelter and services; and (3) The shelter and services are necessary to ensure the minor's safety and well-being; and the provider has conducted an assessment and determined that the minor does not pose a danger to the minor's self or to other persons at the same location. If the provider determines that admitting the minor poses a danger, the provider shall report the matter to an appropriate agency." SECTION 6. Section 346-19.7, Hawaii Revised Statutes, is amended by amending subsections (b) to (e) to read as follows: "(b) The department shall develop procedures for obtaining verifiable information regarding the criminal history [and] information, child abuse and neglect registry information, and any other relevant background information of persons who are seeking to become adoptive parents. The department or its designee shall obtain criminal history record information through the Hawaii criminal justice data center in accordance with section 846-2.7, [and] child abuse record information from the department, and any other relevant background information from relevant sources in accordance with departmental procedures. (c) Except as otherwise specified, any person who seeks to become an adoptive parent, including all adults residing in the prospective adoptive home, shall: (1) Meet all standards and requirements established by the department; (2) Be subject to criminal history record checks in accordance with section 846-2.7, [and] child abuse and neglect registry checks, and any other background checks deemed necessary by the department, in accordance with departmental procedures; and (3) Provide consent to the department to obtain criminal history record [and], information, child abuse and neglect registry information[.] and any other background information deemed necessary by the department. Information obtained pursuant to subsection (b) and this subsection shall be used by the department for the purpose of determining whether or not a person is suitable to be an adoptive parent. All decisions shall be subject to federal laws and regulations. (d) The department may deny a person's application to adopt a child if either of the prospective adoptive parents or any adult residing in the prospective adoptive home was convicted of an offense for which incarceration is a sentencing option, and if the department finds by reason of the nature and circumstances of the crime or other background information that either of the prospective adoptive parents, or any adult residing in the prospective adoptive home, poses a risk to the health, safety, or well-being of the child. A denial shall occur only after appropriate investigation, notification of results and planned action, and opportunity to meet and rebut the finding, all of which need not be conducted in accordance with chapter 91. (e) The department may deny a person's application to adopt a child if either of the prospective adoptive parents or any adult residing in the prospective adoptive home has a history of confirmed child abuse or neglect, or both, revealed by the child abuse and neglect registry check, and if the department finds by reason of the nature and circumstances of the abuse or neglect, or both, or other background information, that either of the prospective adoptive parents or any adult residing in the prospective adoptive home poses a risk to the health, safety, or well-being of the child. A denial shall occur only after an appropriate investigation, notification of results and planned action, and an opportunity to meet and rebut the finding, all of which need not be conducted in accordance with chapter 91." SECTION 7. Section 346-97, Hawaii Revised Statutes, is amended as follows: 1. By amending its title to read: "§346-97 [Criminal history record] Background checks." 2. By amending subsections (b) and (c) to read: "(b) The department shall adopt rules pursuant to chapter 91 establishing standards regarding the reputable and responsible character of department employees and service providers who have responsibilities relating to or direct contact with individuals receiving services under this part[, including:]. The service providers subject to this section shall include: (1) Purchase of service contracted and subcontracted service providers and their principals and employees serving clients of the adult protective and community services branch; (2) The foster grandparent program, senior companion program, and respite companion program participants[;], including their principals and employees; and (3) Contracted and subcontracted service providers and their principals, 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 department employees or service providers[;], as applicable; (2) Be subject to criminal history record checks in accordance with section 846-2.7[;], and other background checks deemed necessary by the department; (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 and other relevant background 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 and any other background 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." 3. By amending subsection (e) to read: "(e) The department may take appropriate action if it finds that the criminal history or other background 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." 4. By amending subsections (g) and (h) to read: "(g) The costs of processing fingerprints and the state criminal history record checks and other background checks may be borne by the department if the person who is being screened is a department employee or potential department employee. Otherwise, the costs may be borne by the [employer] service provider or by the employee or other individual who is being screened. (h) The department, in obtaining and relying upon the results of the state criminal history record checks[,] and other background 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." 5. By amending subsection (j) to read: "(j) The criminal history record information and other 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." SECTION 8. Section 346-152.5, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows: "(a) In order to provide child care for a child whose family receives a child care subsidy from the department, persons exempt pursuant to section 346-152, and any principals and employees of those persons, shall be required to agree to: (1) A criminal history record check, a sex offender registry check, a child abuse record check, [and] an adult abuse perpetrator check, and any other background checks deemed necessary by the department, in the same manner as a prospective applicant or licensed provider in accordance with section 346-154; (2) Completion of a pre-service or orientation training and ongoing training in health and safety topics; and (3) Any monitoring inspection visits by the department or its designee to determine compliance with minimum health and safety standards at the location where child care is being provided for a child whose family receives a child care subsidy from the department, including investigations by the department when the department has received a report of health and safety concerns." SECTION 9. Section 346-154, Hawaii Revised Statutes, is amended to read as follows: "§346-154 Background checks. (a) The department shall develop standards to ensure the reputable and responsible character of an applicant to operate a child care facility, prospective employees of the applicant, principals of the applicant, household members, and new employees or household members of the provider after registration or licensure, which shall include criminal history record checks in accordance with section 846-2.7, sex offender registry checks, child abuse record checks, [and] adult abuse perpetrator checks[.], and any other background checks deemed necessary by the department. For the purposes of this section, "adult abuse perpetrator check" means a search to determine whether an individual is known to the department as a perpetrator of abuse as defined in section 346-222, by means of a search of the individual's name and birth date in the department's adult protective services file. (b) An applicant to operate a child care facility shall: (1) Be subject to criminal history record checks in accordance with section 846-2.7[;], and any other background checks deemed necessary by the department; (2) Submit to the department or its designee, under penalty of law, statements signed by the applicant, each principal of the applicant, prospective employees of the applicant, and household members of the applicant indicating whether the applicant, any of the prospective employees, or any of the household members has ever been confirmed to have abused or neglected a child or vulnerable adult, including threatened harm; and (3) Provide consent to the department or its designee to conduct a criminal history record check in accordance with section 846-2.7, a sex offender registry check, a child abuse record check, [and] an adult abuse perpetrator check, and any other background checks deemed necessary by the department, and to obtain criminal history information, sex offender registry information, child abuse record information, [and] adult abuse perpetrator information, and any other relevant information for verification. (c) A provider shall: (1) Be subject to criminal history record checks in accordance with section 846-2.7 [and], sex offender registry checks[;], and any other background checks deemed necessary by the department; (2) Submit to the department or its designee a statement signed by [any] each principal, each household member, [or any] and each employee [hired after the initial licensure or registration that requires the household member or employee] who was not previously subjected to the requirements of subsection (b)(2) to indicate, under penalty of law, whether the principal, household member, or employee has ever been confirmed to have abused or neglected a child or vulnerable adult, including threatened harm; and (3) Provide consent to the department or its designee to conduct a criminal history record check in accordance with section 846-2.7, a sex offender registry check, a child abuse record check, [and] an adult abuse perpetrator check, and any other background checks deemed necessary by the department, and to obtain criminal history information, sex offender registry information, child abuse record information, [and] adult abuse perpetrator check information, and any other relevant information for verification. (d) The department or its designee shall obtain information on the applicant, any principal of the applicant, any household member, and any prospective employee of the applicant, including any household member or new employee retained after the applicant is issued a registration or license under this part, from the following sources: (1) Criminal history record information through the Hawaii criminal justice data center in accordance with section 846-2.7; (2) National and state sex offender registries; [and] (3) Child abuse record information and adult abuse perpetrator check information from the department in accordance with departmental procedures[.]; and (4) Other relevant sources. (e) The department may deny an application for or revoke a license or registration to operate a child care facility if: (1) The applicant, a principal of the applicant, a household member, or any prospective employee has been convicted of a crime other than a minor traffic violation involving a fine of $50 or less, or ever been confirmed to have abused or neglected a child or vulnerable adult; or (2) The department finds that [the] a criminal history, history of registration as a sex offender, [or] child abuse record or adult abuse perpetrator check record [of that], or other relevant record indicates that: (A) The applicant, [household member,] principal, or prospective employee [indicates that the applicant, household member, or prospective employee] is not suited to bear responsibilities relating to or may pose a risk to the health, safety, or well-being of children[.]; or (B) A household member may pose a risk to the health, safety, or well-being of children. (f) The department may request the provider to terminate its association with a new principal, terminate the employment of a new employee, or terminate the residency of a [new employee or] household member or may suspend or revoke the license or registration of the provider who continues its association with a new principal, employs a new employee, or who allows continued residency of a household member if: (1) The principal, employee, or household member has been convicted of a crime other than a minor traffic violation involving a fine of $50 or less, or ever been confirmed to have abused or neglected a child or vulnerable adult; or (2) The department finds that [the] a criminal history, history of registration as a sex offender, [or] child abuse record or adult abuse perpetrator check record [of the new employee or household member], or other relevant record indicates that [the]: (A) The new principal or new employee [or household member] is not suited to bear responsibilities relating to or may pose a risk to the health, safety, or well-being of children[.]; or (B) A household member may pose a risk to the health, safety, or well-being of children. (g) The department shall deny an application for a license or registration, shall request the provider to terminate an association with a principal or terminate the employment or residency of a new employee or household member, or shall suspend or revoke the license or registration of the provider who associates with a new principal, who employs a new employee, or who allows continued residency of a household member if the applicant, principal, employee, or household member: (1) Refuses to consent to [the] background checks; (2) Knowingly makes a materially false statement in connection with the background checks; or (3) Is registered, or required to be registered, on the national sex offender registry or any state sex offender registry. (h) 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." SECTION 10. Section 352-5.5, Hawaii Revised Statutes, is amended to read as follows: "§352-5.5 [Criminal history record] Background checks. (a) The department shall develop standards to ensure the reputable and responsible characters of staff members of the Hawaii youth correctional facility [which], and the principals and employees of any contractor or subcontractor of the facility. The foregoing individuals shall [include] undergo criminal history record checks in accordance with section 846‑2.7[.], and any other background checks deemed necessary by the department. (b) Staff members, as defined in section 352-5, including any new staff members, and the principals and employees of any contractor or subcontractor of the facility, shall: (1) Be subject to criminal history record checks in accordance with section 846-2.7[;] and any other background checks deemed necessary by the department; and (2) Provide consent to the department to obtain other criminal history record information and other relevant information for verification. New staff members of the facility, a contractor, or subcontractor shall be fingerprinted within five working days of beginning employment for the purpose of complying with the criminal history record check. (c) The department shall obtain criminal history record information through the Hawaii criminal justice data center on all staff members and new staff members of the Hawaii youth correctional facility[.], and the principals and employees of any contractor or subcontractor of the facility. The department shall conduct an annual name inquiry into the state criminal history record files. (d) The department may deny employment to a staff member or new staff member [who], or refuse to use the services of a contractor if a principal or employee of the contractor or a subcontractor, if a criminal history record check shows that the person was convicted of a crime other than a minor traffic violation involving $50 or less, and if the department finds that because of the criminal history record of the [staff member or new staff member] person or any other relevant background information, the [staff member] person is not suitable to bear responsibilities relating to, or poses a risk to the health, safety, security, or well-being of, youths under supervision and confinement. (e) For the purposes of this section: "Background check" shall have the same meaning as in section 356-1. "Principal" shall have the same meaning as in section 346‑1." SECTION 11. Section 352D-4.3, Hawaii Revised Statutes, is amended to read as follows: "§352D-4.3 [Criminal history record] Background checks. (a) Employees, prospective employees, and volunteers of the office, and principals, employees, and volunteers of contracted providers [or] and subcontractors in positions that require those persons to bear responsibilities relating to or place them in close proximity to youth when providing services by or on behalf of the office shall be required to agree to criminal history record checks conducted by the office or its designee in accordance with section 846-2.7[.], and any other background checks deemed necessary by the department. The office shall develop procedures for obtaining verifiable information regarding the criminal history records and other relevant information of individuals seeking to serve as principals, employees, or volunteers [of contracted providers or subcontractors] in positions that include responsibilities relating to youth or place them in close proximity to youth when providing services by or on behalf of the office. (b) Except as otherwise specified, [any] if an individual [who is employed, seeks employment, or volunteers with a] is a principal, an employee, a prospective employee, a volunteer, or prospective volunteer of the office, a contracted provider, or a subcontractor, and the person works or will work in a position that includes responsibilities relating to youth or necessitates close proximity to youth when providing services by or on behalf of the office, the person shall: (1) Submit to the office a sworn statement indicating whether the individual has ever been convicted of an offense for which incarceration is a sentencing option; (2) Be subject to criminal history record checks through the Hawaii criminal justice data center in accordance with section 846-2.7[.] and any other background checks deemed necessary by the department. An annual name inquiry shall be conducted in the state criminal history record files; and (3) Provide to the office written consent for the office or its designee to obtain criminal history record information and other relevant background information for verification. Information obtained pursuant to this section shall be used exclusively by the office for purposes of determining whether a person is suitable for working or volunteering in a position that includes responsibilities relating to youth or necessitates close proximity to youth when providing contracted services by or on behalf of the office, or in conjunction with services provided for youth at the Hawaii youth correctional facility, while in custody, on furlough, or on parole. All such decisions shall be subject to any applicable federal laws and regulations. (c) The office may [require the contracted provider or subcontractor to] refuse employment to an applicant for employment[,] with the office, terminate the employment of an employee[,] of the office, or terminate the services of a volunteer with the office if: (1) The employee, prospective employee, or volunteer [of the contracted provider or subcontractor] has been convicted of an offense for which incarceration is a sentencing option; and (2) The office finds that the criminal history record or other background information of the employee, prospective employee, or volunteer [of the contracted provider or subcontractor] indicates that the employee, prospective employee, or volunteer may pose a risk to the health, safety, or well-being of youth receiving direct services by that employee, prospective employee, or volunteer. (d) The office may require the contacted provider or subcontractor to refuse employment to an applicant for employment, terminate the employment of an employee, or terminate the services of a volunteer for the reasons specified in subsection (c). [(d)] (e) For the purposes of this section: "Background check" shall have the same meaning as in section 346-1. "Principal" shall have the same meaning as in section 346-1. "Prospective employee" means any applicant for a position [with a contracted provider or subcontractor] that provides direct services to youth by or on behalf of the office. "Provider" means any organization that or individual who enters into, or intends to enter into, a contract with or is currently contracted by the office to provide direct services to youth. The term includes all individuals who are authorized to provide direct services to youth under the contract with the organization or individual. "Subcontractor" means any organization that or individual who enters into, or intends to enter into, a contract or agreement with a contracted provider to provide direct services to youth. The term includes all persons who may provide direct services to youth under the contract with the organization or individual. "Volunteer" means any individual who provides, or intends to provide, direct services to youth on a non-compensatory basis. (e) Notwithstanding any other law to the contrary, the office shall be exempt from section 831-3.1 for purposes of this section and need not conduct its investigations, notifications, or hearings in accordance with chapter 91." SECTION 12. Section 378-2.5, Hawaii Revised Statutes, is amended by amending subsection (d) to read as follows: "(d) Notwithstanding subsections (b) and (c), the requirement that inquiry into and consideration of a prospective employee's conviction record may take place only after the individual has received a conditional job offer, and the limitation to the most recent seven-year period for felony convictions and the most recent five-year period for misdemeanor convictions, excluding the period of incarceration, shall not apply to employers who are expressly permitted to inquire into an individual's criminal history for employment purposes pursuant to any federal or state law other than subsection (a), including: (1) The State or any of its branches, political subdivisions, or agencies pursuant to sections 78-2.7 and 831-3.1; (2) The department of education pursuant to section 302A‑601.5; (3) The department of health with respect to employees, providers, or subcontractors in positions that place them in direct contact with clients when providing non-witnessed direct mental health services pursuant to section 321-171.5; (4) The judiciary pursuant to section 571-34; (5) The counties pursuant to section 846-2.7(b)(5), [(33), (34), (35), (36), and (38);] (32), (33), (34), (35), and (37); (6) Armed security services pursuant to section 261-17(b); (7) Providers of a developmental disabilities domiciliary home pursuant to section 321-15.2; (8) Private schools pursuant to sections 302C-1 and 378‑3(8); (9) Financial institutions in which deposits are insured by a federal agency having jurisdiction over the financial institution pursuant to section 378-3(9); (10) Detective agencies and security guard agencies pursuant to sections 463-6(b) and 463-8(b); (11) Employers in the business of insurance pursuant to section 431:2-201.3; (12) Employers of individuals or supervisors of individuals responsible for screening passengers or property under title 49 United States Code section 44901 or individuals with unescorted access to an aircraft of an air carrier or foreign carrier or in a secured area of an airport in the United States pursuant to title 49 United States Code section 44936(a); (13) The department of human services pursuant to sections 346-A, 346-97, and 352-5.5; (14) The public library system pursuant to section 302A‑601.5; (15) The department of public safety pursuant to section 353C-5; (16) The board of directors of a cooperative housing corporation or the manager of a cooperative housing project pursuant to section 421I-12; (17) The board of directors of an association under chapter 514B, or the managing agent or resident manager of a condominium pursuant to section 514B-133; and (18) The department of health pursuant to section 321‑15.2." SECTION 13. 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 on all applicants for licensure or certification for, operators for, prospective employees, 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 principals, operators [and], employees, and new employees of child caring institutions, child placing organizations, and [foster boarding homes] resource family homes as provided by [section] sections 346-A and 346-17[;], and principals, employees, and volunteers of providers described in section 346-17.6 and as provided in section 346-A; (9) The department of human services on prospective adoptive parents and other individuals as established under [section] sections 346-A and 346‑19.7; (10) The department of human services or its designee on child care facility applicants [to operate child care facilities], principals, household members [of the applicant], employees, and prospective employees [of the applicant, and new employees and household members of the provider after registration or licensure] as provided by [section] sections 346-A and 346-154, and persons subject to section 346-152.5; (11) The department of human services on individuals, principals, and employees of persons exempt pursuant to section 346-152 to be eligible to provide child care and receive child care subsidies as provided by [section] sections 346-A and 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 and the principals and employees of contractors and subcontractors of the Hawaii youth correctional facility as provided by [section] sections 346‑A and 352-5.5; (14) The department of human services on employees, prospective employees, and volunteers of the office of youth services, and principals, employees, and volunteers of contracted providers and subcontractors in positions that require them to bear responsibilities relating to or place them in close proximity to youth when providing services by or on behalf of the office or the Hawaii youth correctional facility as provided by [section] sections 346-A and 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 public safety on employees and prospective employees who are directly involved with the treatment and care of persons committed to a correctional facility or who possess 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 serving clients of the adult protective and community services branch,] employees and potential employees of the department, and principals, volunteers, and employees of a contractor or subcontractor, as provided by section [346-97;] 346-B; (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,] department employees and principals, employees, and new employees of service providers, as provided by section 346-97; [(25)] (24) 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)] (25) 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)] (26) 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)] (27) 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)] (28) The department of commerce and consumer affairs on applicants for licensure and persons licensed under title 24; [(30)] (29) 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)] (30) 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)] (31) 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)] (32) The counties on prospective employees who work with children, vulnerable adults, or senior citizens in community-based programs; [(34)] (33) The counties on prospective employees for fire department positions that involve contact with children or vulnerable adults; [(35)] (34) The counties on prospective employees for emergency medical services positions that involve contact with children or vulnerable adults; [(36)] (35) 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)] (36) 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)] (37) 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)] (38) 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)] (39) 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 466L-7; and (C) Each of the controlling persons of an applicant for registration as an appraisal management company, as provided by section 466L-7; [(41)] (40) The department of health or its designee on 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)] (41) 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)] (42) The county police departments on applicants for permits to acquire firearms pursuant to section 134-2 and on individuals registering their firearms pursuant to section 134-3; [(44)] (43) 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 licenseeꞌs activities upon approval of the application, as provided by chapter 449; [(45)] (44) 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)] (45) 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)] (46) 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, as provided by section 346-2.5; [(48)] (47) The child support enforcement agency on current or prospective employees or contractors who have access to federal tax information in order to comply with federal law, regulation, or procedure, as provided by section 576D-11.5; [(49)] (48) The department of the attorney general on current or prospective employees or employees or agents of contractors who have access to federal tax information to comply with requirements of federal law, regulation, or procedure, as provided by section 28‑17; [[(50)]] (49) 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)]] (50) The University of Hawaii on current and prospective employees and contractors whose duties include ensuring the security of campus facilities and persons; and [[(52)]] (51) Any other organization, entity, or the State, its branches, political subdivisions, or agencies as may be authorized by state law." SECTION 14. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date. SECTION 15. In codifying the new sections added by sections 1 and 2 of this Act, the revisor of statutes shall substitute appropriate section numbers for the letters used in designating the new sections in this Act. SECTION 16. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored. SECTION 17. This Act shall take effect on July 1, 2060. |
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| 47 | + | SECTION 1. Chapter 346, Hawaii Revised Statutes, is amended by adding a new section to part I to be appropriately designated and to read as follows: "§346-A Background checks; criminal history; scope; adults having responsibilities relating to or in close proximity to minors and vulnerable adults. (a) Notwithstanding any law to the contrary, but subject to the limitations in subsection (b), the scope of background checks specified in each of the sections listed below shall include all relevant actions of the subject individual during the individual's age of majority; provided that criminal history record checks shall only include criminal actions for which the subject was convicted: (1) Section 346-17; (2) Section 346-17.6; (3) Section 346-19.7; (4) Section 346-B; (5) Section 346-97; (6) Section 346-152.5; (7) Section 346-154; (8) Section 352-5.5; and (9) Section 352D-4.3. (b) Background checks described in subsection (a) shall not be conducted: (1) With respect to individuals who fall under the scope of a contract, unless the contract: (A) Is a new contract that takes effect after June 30, 2022; (B) Is a renewed contact and the renewal is effective after June 30, 2022; or (C) Already includes the background check requirements described in subsection (a); or (2) With respect to an employee or a prospective employee, unless the: (A) Employee's or prospective employee's first day of work or prospective first day of work occurs or would occur after June 30, 2022; (B) Employee is under consideration for a promotion or new position, and the date of promotion or transfer to the new position occurs or would occur after June 30, 2022; or (C) Employee is already working under terms that include the background check requirements described in subsection (a)." SECTION 2. Chapter 346, Hawaii Revised Statutes, is amended by adding a new section to part II to be appropriately designated and to read as follows: "§346-B Background checks; child welfare services. (a) The department shall develop procedures for obtaining verifiable information regarding the criminal history of any person who is employed or seeking employment with the department, or is a principal or employee of a contractor or subcontractor, if the person will bear responsibilities for or be in close proximity to children in need of child welfare services. The procedures shall include criminal history record checks in accordance with section 846-2.7 and other background checks deemed necessary by the department. Information obtained pursuant to this subsection shall be used exclusively by the department for the purpose of determining whether a person is suited to bear responsibilities relating to minors or work in close proximity to minors. (b) The department may terminate or deny employment to any employee or applicant, or terminate or refuse to secure the services of a contractor or subcontractor, its principals, or employees, if the department finds by reason of the nature and circumstances of the background investigation conducted under subsection (a) that the employee, applicant, contractor or subcontractor, or contractor's or subcontractor's principals or employees are not suited to bear responsibilities relating to or work in close proximity to children in need of child welfare services. Termination or denial of employment under this subsection shall only occur after appropriate notification to the employee, applicant, principal, or contractor of the findings of the background investigation, and after the employee, applicant, principal, or contractor is given an opportunity to respond to the findings. Nothing in this subsection shall abrogate any applicable appeal rights under chapters 76 and 89, or administrative rules of the department. (c) 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." SECTION 3. Section 346-1, Hawaii Revised Statutes, is amended by adding two new definitions to be appropriately inserted and to read as follows: ""Background check" means any criminal history record check, child abuse and neglect registry check, sex offender registry check, adult abuse perpetrator check, or other background check that analyzes relevant information regarding the suitability of a subject individual to bear responsibilities relating to or work in close proximity to minors or vulnerable adults, as applicable. "Principal" means an individual owner, individual manager, or other individual in control of an entity that is not a natural person." SECTION 4. Section 346-17, Hawaii Revised Statutes, is amended as follows: 1. By amending subsection (f) to read: "(f) As a condition for a certificate of approval, any organization, institution, or resource family home[, including]; the principals, operators, employees, and new employees of any organization, institution, or resource family home; and all adults residing in [the] a respective resource family home, shall: (1) Meet all standards and requirements established by the department; (2) Be subject to criminal history record checks in accordance with section 846-2.7, [and] child abuse and neglect registry checks, and other background checks deemed necessary by the department, in accordance with departmental procedures; and (3) Provide consent to the department or its designee to obtain criminal history record [and] information, child abuse and neglect registry information[.], and other relevant background information. New employees of the organization, institution, or home shall be fingerprinted within five working days of employment." 2. By amending subsections (j) and (k) to read: "(j) The department or its designee shall request: (1) A criminal history record check through the Hawaii criminal justice data center on all principals, operators, employees, and new employees of child care institutions, child placing organizations, and resource family homes, including all adults residing in the resource family homes, subject to checks pursuant to section 846-2.7; [and] (2) A child abuse and neglect registry check on all principals, operators, employees, and new employees of child care institutions, child placing organizations, and adults residing in a resource family home subject to licensure in accordance with departmental procedures[.]; and (3) Any other background check deemed necessary by the department on the individuals referenced in paragraphs (1) and (2). (k) The department may deny a certificate of approval if a principal, an operator, an employee, or a new employee of a child care institution or child placing organization's facility, or any adult residing in a resource family home, was convicted of a crime other than a minor traffic violation involving a fine of $50 or less and if the department finds that the criminal history record [or], child abuse registry history, or other background history of [an] the convicted person shows that the convicted person: (1) Is not suited to bear responsibilities relating to or poses a risk to the health, safety, or well-being of the children in care, if the convicted person is an operator, employee, new employee[,]; or (2) Poses a risk to the health, safety, or well-being of the children in care, if the convicted person is an adult residing in [a] the resource family home [poses a risk to the health, safety, or well-being of the children in care]." SECTION 5. Section 346-17.6, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows: "(a) [A] If the principals, employees, and volunteers of a provider have been cleared by criminal history record checks, and other background checks deemed necessary by the department, the provider may provide no cost emergency shelter and related services to a consenting minor if the provider reasonably believes that: (1) The minor understands the significant benefits, responsibilities, risks, and limits of the shelter and services and can communicate an informed consent; (2) The minor understands the requirements and rules of the shelter and services; and (3) The shelter and services are necessary to ensure the minor's safety and well-being; and the provider has conducted an assessment and determined that the minor does not pose a danger to the minor's self or to other persons at the same location. If the provider determines that admitting the minor poses a danger, the provider shall report the matter to an appropriate agency." SECTION 6. Section 346-19.7, Hawaii Revised Statutes, is amended by amending subsections (b) to (e) to read as follows: "(b) The department shall develop procedures for obtaining verifiable information regarding the criminal history [and] information, child abuse and neglect registry information, and other relevant background information of persons who are seeking to become adoptive parents. The department or its designee shall obtain criminal history record information through the Hawaii criminal justice data center in accordance with section 846-2.7, [and] child abuse record information from the department, and other relevant background information from relevant sources in accordance with departmental procedures. (c) Except as otherwise specified, any person who seeks to become an adoptive parent, including all adults residing in the prospective adoptive home, shall: (1) Meet all standards and requirements established by the department; (2) Be subject to criminal history record checks in accordance with section 846-2.7, [and] child abuse and neglect registry checks, and other background checks deemed necessary by the department, in accordance with departmental procedures; [and] (3) Provide consent to the department to obtain criminal history record [and], information, child abuse and neglect registry information[.] and other background information deemed necessary by the department; and Information obtained pursuant to subsection (b) and this subsection shall be used by the department for the purpose of determining whether or not a person is suitable to be an adoptive parent. All decisions shall be subject to federal laws and regulations. (d) The department may deny a person's application to adopt a child if either of the prospective adoptive parents or any adult residing in the prospective adoptive home was convicted of an offense for which incarceration is a sentencing option, and if the department finds by reason of the nature and circumstances of the crime or other background information that either of the prospective adoptive parents, or any adult residing in the prospective adoptive home, poses a risk to the health, safety, or well-being of the child. A denial shall occur only after appropriate investigation, notification of results and planned action, and opportunity to meet and rebut the finding, all of which need not be conducted in accordance with chapter 91. (e) The department may deny a person's application to adopt a child if either of the prospective adoptive parents or any adult residing in the prospective adoptive home has a history of confirmed child abuse or neglect, or both, revealed by the child abuse and neglect registry check, and if the department finds by reason of the nature and circumstances of the abuse or neglect, or both, or other background information, that either of the prospective adoptive parents or any adult residing in the prospective adoptive home poses a risk to the health, safety, or well-being of the child. A denial shall occur only after an appropriate investigation, notification of results and planned action, and an opportunity to meet and rebut the finding, all of which need not be conducted in accordance with chapter 91." SECTION 7. Section 346-97, Hawaii Revised Statutes, is amended as follows: 1. By amending its title to read: "§346-97 [Criminal history record] Background checks." 2. By amending subsections (b) and (c) to read: "(b) The department shall adopt rules pursuant to chapter 91 establishing standards regarding the reputable and responsible character of department employees and service providers who have responsibilities relating to or direct contact with individuals receiving services under this part[, including:]. The service providers subject to this section include: (1) Purchase of service contracted and subcontracted service providers and their principals and employees serving clients of the adult protective and community services branch; (2) The foster grandparent program, senior companion program, and respite companion program participants[;], including their principals and employees; and (3) Contracted and subcontracted service providers and their principals, 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 department employees or service providers[;], as applicable (2) Be subject to criminal history record checks in accordance with section 846-2.7[;], and other background checks deemed necessary by the department; (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 and other relevant background 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 and any other background 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." 3. By amending subsection (e) to read: "(e) The department may take appropriate action if it finds that the criminal history or other background 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." 4. By amending subsections (g) and (h) to read: "(g) The costs of processing fingerprints and the state criminal history record checks and other background checks may be borne by the department if the person who is being screened is a department employee or potential department employee. Otherwise, the costs may be borne by the [employer] service provider or by the employee or other individual who is being screened. (h) The department, in obtaining and relying upon the results of the state criminal history record checks[,] and other background 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." 5. By amending subsection (j) to read: "(j) The criminal history record information and other 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." SECTION 8. Section 346-152.5, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows: "(a) In order to provide child care for a child whose family receives a child care subsidy from the department, persons exempt pursuant to section 346-152, and any principals and employees of those persons, shall be required to agree to: (1) A criminal history record check, a sex offender registry check, a child abuse record check, [and] an adult abuse perpetrator check, and any other background checks deemed necessary by the department, in the same manner as a prospective applicant or licensed provider in accordance with section 346-154; (2) Completion of a pre-service or orientation training and ongoing training in health and safety topics; and (3) Any monitoring inspection visits by the department or its designee to determine compliance with minimum health and safety standards at the location where child care is being provided for a child whose family receives a child care subsidy from the department, including investigations by the department when the department has received a report of health and safety concerns." SECTION 9. Section 346-154, Hawaii Revised Statutes, is amended to read as follows: "§346-154 Background checks. (a) The department shall develop standards to ensure the reputable and responsible character of an applicant to operate a child care facility, prospective employees of the applicant, principals of the applicant, household members, and new employees or household members of the provider after registration or licensure, which shall include criminal history record checks in accordance with section 846-2.7, sex offender registry checks, child abuse record checks, [and] adult abuse perpetrator checks[.], and other background checks deemed necessary by the department. For the purposes of this section, "adult abuse perpetrator check" means a search to determine whether an individual is known to the department as a perpetrator of abuse as defined in section 346-222, by means of a search of the individual's name and birth date in the department's adult protective services file. (b) An applicant to operate a child care facility shall: (1) Be subject to criminal history record checks in accordance with section 846-2.7[;], and other background checks deemed necessary by the department; (2) Submit to the department or its designee, under penalty of law, statements signed by the applicant, each principal of the applicant, prospective employees of the applicant, and household members of the applicant indicating whether the applicant, any of the prospective employees, or any of the household members has ever been confirmed to have abused or neglected a child or vulnerable adult, including threatened harm; and (3) Provide consent to the department or its designee to conduct a criminal history record check in accordance with section 846-2.7, a sex offender registry check, a child abuse record check, [and] an adult abuse perpetrator check, and other background checks deemed necessary by the department, and to obtain criminal history information, sex offender registry information, child abuse record information, [and] adult abuse perpetrator information, and other relevant information for verification. (c) A provider shall: (1) Be subject to criminal history record checks in accordance with section 846-2.7 [and], sex offender registry checks[;], and other background checks deemed necessary by the department; (2) Submit to the department or its designee a statement signed by [any] each principal, each household member, [or any] and each employee [hired after the initial licensure or registration that requires the household member or employee] who was not previously subjected to the requirements of subsection (b)(2) to indicate, under penalty of law, whether the principal, household member, or employee has ever been confirmed to have abused or neglected a child or vulnerable adult, including threatened harm; and (3) Provide consent to the department or its designee to conduct a criminal history record check in accordance with section 846-2.7, a sex offender registry check, a child abuse record check, [and] an adult abuse perpetrator check, and other background checks deemed necessary by the department, and to obtain criminal history information, sex offender registry information, child abuse record information, [and] adult abuse perpetrator check information, and other relevant information for verification. (d) The department or its designee shall obtain information on the applicant, any principal of the applicant, any household member, and any prospective employee of the applicant, including any household member or new employee retained after the applicant is issued a registration or license under this part, from the following sources: (1) Criminal history record information through the Hawaii criminal justice data center in accordance with section 846-2.7; (2) National and state sex offender registries; [and] (3) Child abuse record information and adult abuse perpetrator check information from the department in accordance with departmental procedures[.]; and (4) Other relevant sources. (e) The department may deny an application for or revoke a license or registration to operate a child care facility if: (1) The applicant, a principal of the applicant, a household member, or any prospective employee has been convicted of a crime other than a minor traffic violation involving a fine of $50 or less, or ever been confirmed to have abused or neglected a child or vulnerable adult; or (2) The department finds that [the] a criminal history, history of registration as a sex offender, [or] child abuse record or adult abuse perpetrator check record [of that], or other relevant record indicates that: (A) The applicant, [household member,] principal, or prospective employee [indicates that the applicant, household member, or prospective employee] is not suited to bear responsibilities relating to or may pose a risk to the health, safety, or well-being of children[.]; or (B) A household member may pose a risk to the health, safety, or well-being of children. (f) The department may request the provider to terminate its association with a new principal, terminate the employment of a new employee, or terminate the residency of a [new employee or] household member or may suspend or revoke the license or registration of the provider who continues its association with a new principal, employs a new employee, or who allows continued residency of a household member if: (1) The principal, employee, or household member has been convicted of a crime other than a minor traffic violation involving a fine of $50 or less, or ever been confirmed to have abused or neglected a child or vulnerable adult; or (2) The department finds that [the] a criminal history, history of registration as a sex offender, [or] child abuse record or adult abuse perpetrator check record [of the new employee or household member], or other relevant record indicates that [the]: (A) The new principal or new employee [or household member] is not suited to bear responsibilities relating to or may pose a risk to the health, safety, or well-being of children[.]; or (B) A household member may pose a risk to the health, safety, or well-being of children. (g) The department shall deny an application for a license or registration, shall request the provider to terminate an association with a principal or terminate the employment or residency of a new employee or household member, or shall suspend or revoke the license or registration of the provider who associates with a new principal, who employs a new employee, or who allows continued residency of a household member if the applicant, principal, employee, or household member: (1) Refuses to consent to [the] background checks; (2) Knowingly makes a materially false statement in connection with the background checks; or (3) Is registered, or required to be registered, on the national sex offender registry or any state sex offender registry. (h) 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." SECTION 10. Section 352-5.5, Hawaii Revised Statutes, is amended to read as follows: "§352-5.5 [Criminal history record] Background checks. (a) The department shall develop standards to ensure the reputable and responsible characters of staff members of the Hawaii youth correctional facility [which], and the principals and employees of any contractor or subcontractor of the facility. The foregoing individuals shall [include] undergo criminal history record checks in accordance with section 846‑2.7[.], and any other background checks deemed necessary by the department. (b) Staff members, as defined in section 352-5, including any new staff members, and the principals and employees of any contractor or subcontractor of the facility, shall: (1) Be subject to criminal history record checks in accordance with section 846-2.7[;] and other background checks deemed necessary by the department; and (2) Provide consent to the department to obtain other criminal history record information and other relevant information for verification. New staff members of the facility, a contractor, or subcontractor shall be fingerprinted within five working days of beginning employment for the purpose of complying with the criminal history record check. (c) The department shall obtain criminal history record information through the Hawaii criminal justice data center on all staff members and new staff members of the Hawaii youth correctional facility[.], and the principals and employees of any contractor or subcontractor of the facility. The department shall conduct an annual name inquiry into the state criminal history record files. (d) The department may deny employment to a staff member or new staff member [who], or refuse to use the services of a contractor if a principal or employee of the contractor or a subcontractor, if a criminal history record check shows that the person was convicted of a crime other than a minor traffic violation involving $50 or less, and if the department finds that because of the criminal history record of the [staff member or new staff member] person or any other relevant background information, the [staff member] person is not suitable to bear responsibilities relating to, or poses a risk to the health, safety, security, or well-being of, youths under supervision and confinement. (e) For the purposes of this section, "background check" and "principal" shall have the same meaning as in section 346‑1." SECTION 11. Section 352D-4.3, Hawaii Revised Statutes, is amended to read as follows: "§352D-4.3 [Criminal history record] Background checks. (a) Employees, prospective employees, and volunteers of the office, and principals, employees, and volunteers of contracted providers [or] and subcontractors in positions that require those persons to bear responsibilities relating to or place them in close proximity to youth when providing services by or on behalf of the office shall be required to agree to criminal history record checks conducted by the office or its designee in accordance with section 846-2.7[.], and other background checks deemed necessary by the department. The office shall develop procedures for obtaining verifiable information regarding the criminal history records and other relevant information of individuals seeking to serve as principals, employees, or volunteers [of contracted providers or subcontractors] in positions that include responsibilities relating to youth or place them in close proximity to youth when providing services by or on behalf of the office. (b) Except as otherwise specified, [any] if an individual [who is employed, seeks employment, or volunteers with a] is a principal, an employee, a prospective employee, a volunteer, or prospective volunteer of the office, a contracted provider, or a subcontractor, and the person works or will work in a position that includes responsibilities relating to youth or necessitates close proximity to youth when providing services by or on behalf of the office, the person shall: (1) Submit to the office a sworn statement indicating whether the individual has ever been convicted of an offense for which incarceration is a sentencing option; (2) Be subject to criminal history record checks through the Hawaii criminal justice data center in accordance with section 846-2.7[.] and other background checks deemed necessary by the department. An annual name inquiry shall be conducted in the state criminal history record files; and (3) Provide to the office written consent for the office or its designee to obtain criminal history record information and other relevant background information for verification. Information obtained pursuant to this section shall be used exclusively by the office for purposes of determining whether a person is suitable for working or volunteering in a position that includes responsibilities relating to youth or necessitates close proximity to youth when providing contracted services by or on behalf of the office, or in conjunction with services provided for youth at the Hawaii youth correctional facility, while in custody, on furlough, or on parole. All such decisions shall be subject to any applicable federal laws and regulations. (c) The office may [require the contracted provider or subcontractor to] refuse employment to an applicant for employment[,] with the office, terminate the employment of an employee[,] of the office, or terminate the services of a volunteer with the office if: (1) The employee, prospective employee, or volunteer [of the contracted provider or subcontractor] has been convicted of an offense for which incarceration is a sentencing option; and (2) The office finds that the criminal history record or other background information of the employee, prospective employee, or volunteer [of the contracted provider or subcontractor] indicates that the employee, prospective employee, or volunteer may pose a risk to the health, safety, or well-being of youth receiving direct services by that employee, prospective employee, or volunteer. (d) The office may require the contacted provider or subcontractor to refuse employment to an applicant for employment, terminate the employment of an employee, or terminate the services of a volunteer for the reasons specified in subsection (c). [(d)] (e) For the purposes of this section: "Background check" and "principal" shall have the same meaning as in section 346-1. "Prospective employee" means any applicant for a position [with a contracted provider or subcontractor] that provides direct services to youth by or on behalf of the office. "Provider" means any organization that or individual who enters into, or intends to enter into, a contract with or is currently contracted by the office to provide direct services to youth. The term includes all individuals who are authorized to provide direct services to youth under the contract with the organization or individual. "Subcontractor" means any organization that or individual who enters into, or intends to enter into, a contract or agreement with a contracted provider to provide direct services to youth. The term includes all persons who may provide direct services to youth under the contract with the organization or individual. "Volunteer" means any individual who provides, or intends to provide, direct services to youth on a non-compensatory basis. (e) Notwithstanding any other law to the contrary, the office shall be exempt from section 831-3.1 for purposes of this section and need not conduct its investigations, notifications, or hearings in accordance with chapter 91." SECTION 12. Section 378-2.5, Hawaii Revised Statutes, is amended by amending subsection (d) to read as follows: "(d) Notwithstanding subsections (b) and (c), the requirement that inquiry into and consideration of a prospective employee's conviction record may take place only after the individual has received a conditional job offer, and the limitation to the most recent seven-year period for felony convictions and the most recent five-year period for misdemeanor convictions, excluding the period of incarceration, shall not apply to employers who are expressly permitted to inquire into an individual's criminal history for employment purposes pursuant to any federal or state law other than subsection (a), including: (1) The State or any of its branches, political subdivisions, or agencies pursuant to sections 78-2.7 and 831-3.1; (2) The department of education pursuant to section 302A‑601.5; (3) The department of health with respect to employees, providers, or subcontractors in positions that place them in direct contact with clients when providing non-witnessed direct mental health services pursuant to section 321-171.5; (4) The judiciary pursuant to section 571-34; (5) The counties pursuant to section 846-2.7(b)(5), [(33), (34), (35), (36), and (38);] (32), (33), (34), (35), and (37); (6) Armed security services pursuant to section 261-17(b); (7) Providers of a developmental disabilities domiciliary home pursuant to section 321-15.2; (8) Private schools pursuant to sections 302C-1 and 378‑3(8); (9) Financial institutions in which deposits are insured by a federal agency having jurisdiction over the financial institution pursuant to section 378-3(9); (10) Detective agencies and security guard agencies pursuant to sections 463-6(b) and 463-8(b); (11) Employers in the business of insurance pursuant to section 431:2-201.3; (12) Employers of individuals or supervisors of individuals responsible for screening passengers or property under title 49 United States Code section 44901 or individuals with unescorted access to an aircraft of an air carrier or foreign carrier or in a secured area of an airport in the United States pursuant to title 49 United States Code section 44936(a); (13) The department of human services pursuant to sections 346-A, 346-97, and 352-5.5; (14) The public library system pursuant to section 302A‑601.5; (15) The department of public safety pursuant to section 353C-5; (16) The board of directors of a cooperative housing corporation or the manager of a cooperative housing project pursuant to section 421I-12; (17) The board of directors of an association under chapter 514B, or the managing agent or resident manager of a condominium pursuant to section 514B-133; and (18) The department of health pursuant to section 321‑15.2." SECTION 13. 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 on all applicants for licensure or certification for, operators for, prospective employees, 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 principals, operators [and], employees, and new employees of child caring institutions, child placing organizations, and [foster boarding homes] resource family homes as provided by [section] sections 346-A and 346-17; and principals, employees, and volunteers of providers described in section 346-17.6 and as provided in section 346-A; (9) The department of human services on prospective adoptive parents and other individuals as established under [section] sections 346-A and 346‑19.7; (10) The department of human services or its designee on child care facility applicants [to operate child care facilities], principals, household members [of the applicant], employees, and prospective employees [of the applicant, and new employees and household members of the provider after registration or licensure] as provided by [section] sections 346-A and 346-154, and persons subject to section 346-152.5; (11) The department of human services on individuals, principals, and employees of persons exempt pursuant to section 346-152 to be eligible to provide child care and receive child care subsidies as provided by [section] sections 346-A and 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 and the principals and employees of contractors and subcontractors as provided by [section] sections 346‑A and 352-5.5; (14) The department of human services on employees, prospective employees, and volunteers of the office of youth services, and principals, employees, and volunteers of contracted providers and subcontractors in positions that require them to bear responsibilities relating to or place them in close proximity to youth when providing services by or on behalf of the office or the Hawaii youth correctional facility as provided by [section] sections 346-A and 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 public safety on employees and prospective employees who are directly involved with the treatment and care of persons committed to a correctional facility or who possess 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 serving clients of the adult protective and community services branch,] employees and potential employees of the department, and principals and employees of a contractor or subcontractor, as provided by section [346-97;] 346-B; (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,] department employees and principals, employees, and new employees of service providers, as provided by section 346-97; [(25)] (24) 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)] (25) 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)] (26) 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)] (27) 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)] (28) The department of commerce and consumer affairs on applicants for licensure and persons licensed under title 24; [(30)] (29) 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)] (30) 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)] (31) 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)] (32) The counties on prospective employees who work with children, vulnerable adults, or senior citizens in community-based programs; [(34)] (33) The counties on prospective employees for fire department positions that involve contact with children or vulnerable adults; [(35)] (34) The counties on prospective employees for emergency medical services positions that involve contact with children or vulnerable adults; [(36)] (35) 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)] (36) 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)] (37) 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)] (38) 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)] (39) 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 466L-7; and (C) Each of the controlling persons of an applicant for registration as an appraisal management company, as provided by section 466L-7; [(41)] (40) The department of health or its designee on 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)] (41) 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)] (42) The county police departments on applicants for permits to acquire firearms pursuant to section 134-2 and on individuals registering their firearms pursuant to section 134-3; [(44)] (43) 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 licenseeꞌs activities upon approval of the application, as provided by chapter 449; [(45)] (44) 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)] (45) 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)] (46) 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, as provided by section 346-2.5; [(48)] (47) The child support enforcement agency on current or prospective employees or contractors who have access to federal tax information in order to comply with federal law, regulation, or procedure, as provided by section 576D-11.5; [(49)] (48) The department of the attorney general on current or prospective employees or employees or agents of contractors who have access to federal tax information to comply with requirements of federal law, regulation, or procedure, as provided by section 28‑17; [[(50)]] (49) 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)]] (50) The University of Hawaii on current and prospective employees and contractors whose duties include ensuring the security of campus facilities and persons; and [[(52)]] (51) Any other organization, entity, or the State, its branches, political subdivisions, or agencies as may be authorized by state law." SECTION 14. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date. SECTION 15. In codifying the new sections added by sections 1 and 2 of this Act, the revisor of statutes shall substitute appropriate section numbers for the letters used in designating the new sections in this Act. SECTION 16. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored. SECTION 17. This Act shall take effect on July 1, 2022. INTRODUCED BY: _____________________________ |
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