GENERAL ASSEMBLY OF NORTH CAROLINA
SESSION 2001
S	4
SENATE BILL 826
 Health Care Committee Substitute Adopted 4/19/01
Third Edition Engrossed 4/23/01
House Committee Substitute Favorable 7/10/01 

Short Title:	Criminal Record Check Change/Long-Term Care.	()	
Sponsors:	     	
Referred to:	     	
April 3, 2001

A BILL TO BE ENTITLED
AN ACT TO REPEAL THE REQUIREMENT FOR A NATIONAL CRIMINAL HISTORY RECORD CHECK FOR CERTAIN LONG-TERM CARE FACILITIES BECAUSE OF FEDERAL REQUIREMENTS LIMITING DISTRIBUTION OF RECORD CHECK RESULTS AND TO ESTABLISH THE STUDY COMMISSION ON CRIMINAL HISTORY RECORD CHECKS.  

The General Assembly of North Carolina enacts:
SECTION 1.  G.S. 131E‑265 reads as rewritten:
"§ 131E‑265.  Criminal history record checks required for certain applicants for employment.
(a)	Requirement; Nursing Home or Home Care Agency. – An offer of employment by a nursing home licensed under this Chapter to an applicant to fill a position that does not require the applicant to have an occupational license is conditioned on consent to a criminal history record check of the applicant. An offer of employment by a home care agency licensed under this Chapter to an applicant to fill a position that requires entering the patient's home is conditioned on consent to a criminal history record check of the applicant. In addition, employment status change of a current employee of a home care agency licensed under this Chapter from a position that does not require entering the patient's home to a position that requires entering the patient's home shall be conditioned on consent to a criminal history record check of that current employee.  A nursing home or a home care agency shall not employ an applicant who refuses to consent to a criminal history record check required by this section. In addition, a home care agency shall not change a current employee's employment status from a position that does not require entering the patient's home to a position that requires entering the patient's home who refuses to consent to a criminal history record check required by this section. Within five business days of making the conditional offer of employment, a nursing home or home care agency shall submit a request to the Department of Justice under G.S. 114.19.10 to conduct a State criminal history record check required by this section, or shall submit a request to a private entity to conduct a State criminal history record check required by this section. All criminal history information received by the home or agency is confidential and may not be disclosed, except to the applicant as provided in subsection (b) of this section.
(a1)	Requirement; Contract Agency of Nursing Home or Home Care Agency. – An offer of employment by a contract agency of a nursing home or home care agency licensed under this Chapter to an applicant to fill a position that does not require the applicant to have an occupational license is conditioned upon consent to a criminal history record check of the applicant.  A contract agency of a nursing home or home care agency shall not employ an applicant who refuses to consent to a criminal history record check required by this section. Within five business days of making the conditional offer of employment, a contract agency of a nursing home or home care agency shall submit a request to the Department of Justice under G.S. 114‑19.10 to conduct a State criminal history record check required by this section, or shall submit a request to a private entity to conduct a State criminal history record check required by this section. All criminal history information received by the contract agency is confidential and may not be disclosed, except to the applicant as provided by subsection (b) of this section.
(b)	Action. – If an applicant's criminal history record check reveals one or more convictions of a relevant offense, the nursing home or home care agency, or the contract agency of a nursing home or home care agency, shall consider all of the following factors in determining whether to hire the applicant:
(1)	The level and seriousness of the crime.
(2)	The date of the crime.
(3)	The age of the person at the time of the conviction.
(4)	The circumstances surrounding the commission of the crime, if known.
(5)	The nexus between the criminal conduct of the person and the job duties of the position to be filled.
(6)	The prison, jail, probation, parole, rehabilitation, and employment records of the person since the date the crime was committed.
(7)	The subsequent commission by the person of a relevant offense.
The fact of conviction of a relevant offense alone shall not be a bar to employment; however, the listed factors shall be considered by the nursing home or home care agency, or the contract agency of the nursing home or home care agency. If a nursing home, home care agency, or contract agency of a nursing home or home care agency disqualifies an applicant after consideration of the relevant factors, then the nursing home, home care agency, or contract agency may disclose information contained in the criminal history record check that is relevant to the disqualification, but may not provide a copy of the criminal history record check to the applicant.
(c)	Limited Immunity. – An entity and an officer or employee of an entity that, in good faith, complies with this section is not liable for the failure of the entity to employ an individual on the basis of information provided in the criminal history record check of the individual.
(d)	Relevant Offense. – As used in this section, the term "relevant offense" has the same meaning as in G.S. 131D‑40.
(e)	Penalty for Furnishing False Information. – Any applicant for employment who willfully furnishes, supplies, or otherwise gives false information on an employment application that is the basis for a criminal history record check under this section shall be guilty of a Class A1 misdemeanor.
(f)	Conditional Employment. – A nursing home or home care agency may employ an applicant conditionally prior to obtaining the results of a criminal history record check regarding the applicant if both of the following requirements are met:
(1)	The nursing home or home care agency shall not employ an applicant prior to obtaining the applicant's consent for a criminal history record check as required in subsection (a) of this section or the completed fingerprint cards as required in G.S. 114‑19.10.
(2)	The nursing home or home care agency shall submit the request for a criminal history record check not later than five business days after the individual undertakes the functions of the job.
(g)	Immunity From Liability. – An entity and officers and employees of an entity shall be immune from civil liability for failure to check an employee's history of criminal offenses if the employee's criminal history record check is requested and received in compliance with this section."
SECTION 2.  G.S. 131D‑40 reads as rewritten:
"§ 131D‑40.  Criminal history record checks required for certain applicants for employment.
(a)	Requirement; Adult Care Home. – An offer of employment by an adult care home licensed under this Chapter to an applicant to fill a position that does not require the applicant to have an occupational license is conditioned on consent to a criminal history record check of the applicant.  An adult care home shall not employ an applicant who refuses to consent to a criminal history record check required by this section. Within five business days of making the conditional offer of employment, an adult care home shall submit a request to the Department of Justice under G.S. 114‑19.10 to conduct a State criminal history record check required by this section, or shall submit a request to a private entity to conduct a State criminal history record check required by this section. All criminal history information received by the home is confidential and may not be disclosed, except to the applicant as provided in subsection (b) of this section.
(a1)	Requirement; Contract Agency of Adult Care Home. – An offer of employment by a contract agency of an adult care home licensed under this Chapter to an applicant to fill a position that does not require the applicant to have an occupational license is conditioned upon consent to a criminal history record check of the applicant.  A contract agency of an adult care home shall not employ an applicant who refuses to consent to a criminal history record check required by this section. Within five business days of making the conditional offer of employment, a contract agency of an adult care home shall submit a request to the Department of Justice under G.S. 114‑19.10 to conduct a State criminal history record check required by this section, or shall submit a request to a private entity to conduct a State criminal history record check required by this section. All criminal history information received by the contract agency is confidential and may not be disclosed, except to the applicant as provided by subsection (b) of this section.
(b)	Action. – If an applicant's criminal history record check reveals one or more convictions of a relevant offense, the adult care home or a contract agency of the adult care home shall consider all of the following factors in determining whether to hire the applicant:
(1)	The level and seriousness of the crime.
(2)	The date of the crime.
(3)	The age of the person at the time of the conviction.
(4)	The circumstances surrounding the commission of the crime, if known.
(5)	The nexus between the criminal conduct of the person and the job duties of the position to be filled.
(6)	The prison, jail, probation, parole, rehabilitation, and employment records of the person since the date the crime was committed.
(7)	The subsequent commission by the person of a relevant offense.
The fact of conviction of a relevant offense alone shall not be a bar to employment; however, the listed factors shall be considered by the adult care home or the contract agency of the adult care home. If the adult care home or a contract agency of the adult care home disqualifies an applicant after consideration of the relevant factors, then the adult care home or the contract agency may disclose information contained in the criminal history record check that is relevant to the disqualification, but may not provide a copy of the criminal history record check to the applicant.
(c)	Limited Immunity. – An adult care home and an officer or employee of an adult care home that, in good faith, complies with this section is not liable for the failure of the home to employ an individual on the basis of information provided in the criminal history record check of the individual.
(d)	Relevant Offense. – As used in this section, "relevant offense" means a State crime, whether a misdemeanor or felony, that bears upon an individual's fitness to have responsibility for the safety and well‑being of aged or disabled persons. These crimes include the criminal offenses set forth in any of the following Articles of Chapter 14 of the General Statutes: Article 5, Counterfeiting and Issuing Monetary Substitutes; Article 5A, Endangering Executive and Legislative Officers; Article 6, Homicide; Article 7A, Rape and Other Sex Offenses; Article 8, Assaults; Article 10, Kidnapping and Abduction; Article 13, Malicious Injury or Damage by Use of Explosive or Incendiary Device or Material; Article 14, Burglary and Other Housebreakings; Article 15, Arson and Other Burnings; Article 16, Larceny; Article 17, Robbery; Article 18, Embezzlement; Article 19, False Pretenses and Cheats; Article 19A, Obtaining Property or Services by False or Fraudulent Use of Credit Device or Other Means; Article 19B, Financial Transaction Card Crime Act; Article 20, Frauds; Article 21, Forgery; Article 26, Offenses against Public Morality and Decency; Article 26A, Adult Establishments; Article 27, Prostitution; Article 28, Perjury; Article 29, Bribery; Article 31, Misconduct in Public Office; Article 35, Offenses Against the Public Peace; Article 36A, Riots and Civil Disorders; Article 39, Protection of Minors; Article 40, Protection of the Family; Article 59, Public Intoxication; and Article 60, Computer‑Related Crime. These crimes also include possession or sale of drugs in violation of the North Carolina Controlled Substances Act, Article 5 of Chapter 90 of the General Statutes, and alcohol‑related offenses such as sale to underage persons in violation of G.S. 18B‑302 or driving while impaired in violation of G.S. 20‑138.1 through G.S. 20‑138.5.
(e)	Penalty for Furnishing False Information. – Any applicant for employment who willfully furnishes, supplies, or otherwise gives false information on an employment application that is the basis for a criminal history record check under this section shall be guilty of a Class A1 misdemeanor.
(f)	Conditional Employment. – An adult care home may employ an applicant conditionally prior to obtaining the results of a criminal history record check regarding the applicant if both of the following requirements are met:
(1)	The adult care home shall not employ an applicant prior to obtaining the applicant's consent for a criminal history record check as required in subsection (a) of this section or the completed fingerprint cards as required in G.S. 114‑19.10.
(2)	The adult care home shall submit the request for a criminal history record check not later than five business days after the individual undertakes the functions of the job.
(g)	Immunity From Liability. – An entity and officers and employees of an entity shall be immune from civil liability for failure to check an employee's history of criminal offenses if the employee's criminal history record check is requested and received in compliance with this section."
SECTION 3.  G.S. 114‑19.10 reads as rewritten:
"§ 114‑19.10.  Criminal record checks for adult care homes, nursing homes, home care agencies, and area mental health, developmental disabilities, and substance abuse services authorities.
The Department of Justice may provide to the following entities a criminal record check of an individual who is employed by that entity, has applied for employment with that entity, or has volunteered to provide direct care on behalf of that entity:
(1)	Nursing homes or combination homes licensed under Chapter 131E of the General Statutes.
(2)	Adult care homes licensed under Chapter 131D of the General Statutes.
(3)	Home care agencies licensed under Chapter 131E of the General Statutes.
(4)	Area mental health, developmental disabilities, and substance abuse services authorities licensed under Chapter 122C of the General Statutes, including a contract agency of an area authority that is subject to the provisions of Article 4 of that Chapter.
The criminal history shall be provided to nursing homes and home care agencies in accordance with G.S. 131E‑265, to adult care homes in accordance with G.S. 131D‑40, and to area mental health, developmental disabilities, and substance abuse services authorities in accordance with G.S. 122C‑80. The requesting entity shall provide to the Department of Justice, along with the request, the fingerprints of the individual to be  checked, any additional information required by the Department of Justice, and a form signed by the individual to be checked consenting to the check of the criminal record and to the use of fingerprints and other identifying information required by the State or National Repositories of Criminal Histories. If a national criminal history record check is required, the fingerprints of the individual shall be forwarded to the State Bureau of Investigation for a search of the State's criminal history record file, and the State Bureau of Investigation shall forward a set of fingerprints to the Federal Bureau of Investigation for a national criminal history record check. All information received by the entity shall be kept confidential in accordance with G.S. 131E‑265, 131D‑40, and 122C‑80, as applicable. The Department of Justice shall charge a reasonable fee for conducting the checks authorized by this section. The fee for the State check may not exceed fourteen dollars ($14.00)."
SECTION 4.(a)  There is established the Study Commission on Criminal History Record Checks.  The purpose of the Commission is to study how federal law affects the distribution of national criminal history record check information requested for nursing homes, home care agencies, adult care homes, assisted living facilities, and area mental health, developmental disabilities, and substance abuse services authorities, and the problems federal restrictions pose for effective and efficient implementation of State-required criminal record checks. The study shall include the following:
(1)	Ways in which national record checks may be obtained and reviewed for these facilities to effectuate State policy and protections of facility residents, and the advantages, disadvantages, and costs of various approaches to implementation.
(2)	A review of ways in which national record checks are obtained by the Division of Child Development, Department of Health and Human Services, and other State agencies, and related costs to the State.
(3)	Solutions adopted by other states to effectively and efficiently implement criminal record check requirements, including costs to the State in implementing these solutions.
(4)	Other issues the Commission considers relevant to State requirements for criminal history record checks in long‑term care facilities.
SECTION 4.(b)  The Commission shall consist of 25 members, appointed as follows:
(1)	Ten members of the General Assembly, five of whom shall be Senators appointed by the President Pro Tempore of the Senate, and five of whom shall be members of the House of Representatives appointed by the Speaker of the House of Representatives.
(2)	A representative from each of the following, appointed by the President Pro Tempore of the Senate:
a.	North Carolina Association of Long Term Care Facilities.
b.	North Carolina Assisted Living Association, Inc.
c.	The Director of the Division of Aging of the Department of Health and Human Services.
d.	The Director of the Division of Mental Health, Developmental Disabilities, and Substance Abuse Services of the Department of Health and Human Services.
e.	The public.
(3)	A representative from each of the following, appointed by the Speaker of the House of Representatives:
a.	North Carolina Health Care Facilities Association.
b.	Friends of Residents in Long Term Care.
c.	The Director of the Division of Facility Services of the Department of Health and Human Services.
d.	CNC Access, Inc., an organization representing providers of mental health, developmental disabilities, and substance abuse services.
e.	The public at large.
(4)	A representative from each of the following, appointed by the Governor:
a.	The Council on Community Programs.
b.	The Secretary of Health and Human Services, or her designee.
c.	The Attorney General, or his designee.
d.	The Director of the State Bureau of Investigation, or the Director's designee.
e.	Association for Home and Hospice Care in North Carolina.
SECTION 4.(c)  With the prior approval of the Legislative Services Commission, the Legislative Services Officer shall assign professional staff to assist in the work of the Study Commission on Criminal History Record Checks. With the prior approval of the Legislative Services Commission, the Study Commission may hold its meetings in the State Legislative Building or the Legislative Office Building.
SECTION 4.(d)  The Commission shall submit a final written report of its findings and recommendations on or before the convening of the 2002 Regular Session of the 2001 General Assembly.  All reports shall be filed with the President Pro Tempore of the Senate and the Speaker of the House of Representatives, the Principal Clerks of the Senate and the House of Representatives, and the Legislative Librarian.  Upon filing its final report, the Commission shall terminate.
SECTION 4.(e)  Members of the Commission shall be paid per diem, subsistence, and travel allowances as follows:
(1)	Commission members who are also members of the General Assembly, at the rate established in G.S. 120‑3.1;
(2)	Commission members who are officials or employees of the State or local government agencies, at the rate established in G.S. 138‑6;
(3)	All other Commission members, at the rate established in G.S. 138‑5.
SECTION 4.(f)  All State departments and agencies shall cooperate with the Commission and, upon request, shall furnish to the Commission and its staff any information in their possession or available to them.
SECTION 4.(g)  From funds appropriated to the General Assembly, the Legislative Services Commission shall allocate funds for the expenses of the Study Commission on Criminal History Record Checks.
SECTION 5.  Section 4 of this act becomes effective July 1, 2001.  The remainder of this act is effective when it becomes law.