Substitute Bill No. 5259
February Session, 2018
AN ACT CONCERNING CRIMINAL OFFENSES THAT DISQUALIFY AN INDIVIDUAL FROM OBTAINING EMPLOYMENT OR VOLUNTEERING AT A LONG-TERM CARE FACILITY.
Be it enacted by the Senate and House of Representatives in General Assembly convened:
Section 1. Section 19a-491c of the 2018 supplement to the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2018):
(a) As used in this section:
(1) "Criminal history and patient abuse background search" or "background search" means (A) a review of the registry of nurse's aides maintained by the Department of Public Health pursuant to section 20-102bb, (B) checks of state and national criminal history records conducted in accordance with section 29-17a, and (C) a review of any other registry specified by the Department of Public Health which the department deems necessary for the administration of a background search program.
(2) "Direct access" means physical access to a patient or resident of a long-term care facility that affords an individual with the opportunity to commit abuse or neglect against or misappropriate the property of a patient or resident.
(3) "Disqualifying offense" means a conviction of any crime described in 42 USC 1320a-7(a)(1), (2), (3) or (4) or a substantiated finding of neglect, abuse or misappropriation of property by a state or federal agency pursuant to an investigation conducted in accordance with 42 USC 1395i-3(g)(1)(C) or 42 USC 1396r(g)(1)(C). "Disqualifying offense" includes, but is not limited to, a conviction under section 53a-54a, 53a-54b, 53a-54c, 53a-54d, 53a-55, 53a-55a, 53a-59, 53a-59a, 53a-70, 53a-70a, 53a-70c, 53a-71, 53a-72a, 53a-72b, 53a-100aa, 53a-101, 53a-102, 53a-111, 53a-122, 53a-123 or 53a-134.
(4) "Long-term care facility" means any facility, agency or provider that is a nursing home, as defined in section 19a-521, a residential care home, as defined in section 19a-521, a home health agency, as defined in section 19a-490, an assisted living services agency, as defined in section 19a-490, an intermediate care facility for individuals with intellectual disabilities, as defined in 42 USC 1396d(d), a chronic disease hospital, as defined in section 19a-550, or an agency providing hospice care which is licensed to provide such care by the Department of Public Health or certified to provide such care pursuant to 42 USC 1395x.
(b) (1) On or before July 1, 2012, the Department of Public Health shall create and implement a criminal history and patient abuse background search program, within available appropriations, in order to facilitate the performance, processing and analysis of the criminal history and patient abuse background search of individuals who have direct access.
(2) The Department of Public Health shall develop a plan to implement the criminal history and patient abuse background search program, in accordance with this section. In developing such plan, the department shall (A) consult with the Commissioners of Emergency Services and Public Protection, Developmental Services, Mental Health and Addiction Services, Social Services and Consumer Protection, or their designees, the State Long-Term Care Ombudsman, or a designee, the chairperson of the Board of Pardons and Paroles, or a designee, a representative of each category of long-term care facility and representatives from any other agency or organization the Commissioner of Public Health deems appropriate, (B) evaluate factors including, but not limited to, the administrative and fiscal impact of components of the program on state agencies and long-term care facilities, background check procedures currently used by long-term care facilities, federal requirements pursuant to Section 6201 of the Patient Protection and Affordable Care Act, P.L. 111-148, as amended from time to time, and the effect of full and provisional pardons on employment, and (C) outline (i) an integrated process with the Department of Emergency Services and Public Protection to cross-check and periodically update criminal information collected in criminal databases, (ii) a process by which individuals with disqualifying offenses can apply for a waiver, and (iii) the structure of an Internet-based portal to streamline the criminal history and patient abuse background search program. The Department of Public Health shall submit such plan, including a recommendation as to whether homemaker-companion agencies should be included in the scope of the background search program, to the joint standing committees of the General Assembly having cognizance of matters relating to aging, appropriations and the budgets of state agencies, and public health, in accordance with the provisions of section 11-4a, not later than February 1, 2012.
(c) (1) Except as provided in subdivision (2) of this subsection, each long-term care facility, prior to extending an offer of employment to, or entering into a contract for, the provision of long-term care services with any individual who will have direct access, or prior to allowing any individual to begin volunteering at such long-term care facility when the long-term care facility reasonably expects such volunteer will regularly perform duties that are substantially similar to those of an employee with direct access, shall require that such individual submit to a background search. The Department of Public Health shall prescribe the manner by which (A) long-term care facilities perform the review of (i) the registry of nurse's aides maintained by the department pursuant to section 20-102bb, and (ii) any other registry specified by the department, including requiring long-term care facilities to report the results of such review to the department, and (B) individuals submit to state and national criminal history records checks, including requiring the Department of Emergency Services and Public Protection to report the results of such checks to the Department of Public Health.
(2) No long-term care facility shall be required to comply with the provisions of this subsection if the individual provides evidence to the long-term care facility that such individual submitted to a background search conducted pursuant to subdivision (1) of this subsection not more than three years immediately preceding the date such individual applies for employment, seeks to enter into a contract or begins volunteering with the long-term care facility and that the prior background search confirmed that the individual did not have a disqualifying offense.
(d) (1) The Department of Public Health shall review all reports provided to the department pursuant to subsection (c) of this section. If any such report contains evidence indicating that an individual has a disqualifying offense, the department shall provide notice to the individual and the long-term care facility indicating the disqualifying offense and providing the individual with the opportunity to file a request for a waiver pursuant to subdivisions (2) and (3) of this subsection.
(2) An individual may file a written request for a waiver with the department not later than thirty days after the date the department mails notice to the individual pursuant to subdivision (1) of this subsection. The department shall mail a written determination indicating whether the department shall grant a waiver pursuant to subdivision (3) of this subsection not later than fifteen business days after the department receives the written request from the individual, except that said time period shall not apply to any request for a waiver in which an individual challenges the accuracy of the information obtained from the background search.
(3) The department may grant a waiver from the provisions of subsection (e) of this section to an individual who identifies mitigating circumstances surrounding the disqualifying offense, including (A) inaccuracy in the information obtained from the background search, (B) lack of a relationship between the disqualifying offense and the position for which the individual has applied, (C) evidence that the individual has pursued or achieved rehabilitation with regard to the disqualifying offense, or (D) that substantial time has elapsed since committing the disqualifying offense. The department and its employees shall be immune from liability, civil or criminal, that might otherwise be incurred or imposed, for good faith conduct in granting waivers pursuant to this subdivision.
(4) After completing a review pursuant to subdivision (1) of this subsection, the department shall notify in writing the long-term care facility to which the individual has applied for employment or with which the individual seeks to enter into a contract or volunteer (A) of any disqualifying offense and any information the individual provided to the department regarding mitigating circumstances surrounding such offense, or of the lack of a disqualifying offense, and (B) whether the department granted a waiver pursuant to subdivision (3) of this subsection.
(e) Notwithstanding the provisions of section 46a-80, no long-term care facility shall employ an individual required to submit to a background search, contract with any such individual to provide long-term care services or allow such individual to volunteer if the long-term care facility receives notice from the department that the individual has a disqualifying offense in the individual's background search and the department has not granted a waiver pursuant to subdivision (3) of subsection (d) of this section. A long-term care facility may, but is not obligated to, employ, enter into a contract with or allow to volunteer an individual who was granted a waiver pursuant to said subdivision (3).
(f) (1) Except as provided in subdivision (2) of this subsection, a long-term care facility shall not employ, enter into a contract with or allow to volunteer any individual required to submit to a background search until the long-term care facility receives notice from the Department of Public Health pursuant to subdivision (4) of subsection (d) of this section.
(2) A long-term care facility may employ, enter into a contract with or allow to volunteer an individual required to submit to a background search on a conditional basis before the long-term care facility receives notice from the department that such individual does not have a disqualifying offense, provided: (A) The employment or contractual or volunteer period on a conditional basis shall last not more than sixty days, except the sixty-day time period may be extended by the department to allow for the filing and consideration of written request for a waiver of a disqualifying offense filed by an individual pursuant to subsection (d) of this section, (B) the long-term care facility has begun the review required under subsection (c) of this section and the individual has submitted to checks pursuant to subsection (c) of this section, (C) the individual is subject to direct, on-site supervision during the course of such conditional employment or contractual or volunteer period, and (D) the individual, in a signed statement (i) affirms that the individual has not committed a disqualifying offense, and (ii) acknowledges that a disqualifying offense reported in the background search required by subsection (c) of this section shall constitute good cause for termination and a long-term care facility may terminate the individual if a disqualifying offense is reported in said background search.
(g) Notwithstanding the provisions of subsection (b) of this section, the department may phase in implementation of the criminal history and patient abuse background search program by category of long-term care facility. No long-term care facility shall be required to comply with the provisions of subsections (c), (e) and (f) of this section until the date notice is published by the Commissioner of Public Health in the Connecticut Law Journal indicating that the commissioner is implementing the criminal history and patient abuse background search program for the category of such long-term care facility.
(h) The department shall adopt regulations, in accordance with the provisions of chapter 54, to implement the provisions of this section. The department may implement policies and procedures consistent with the provisions of this section while in the process of adopting such policies and procedures as regulation, provided notice of intention to adopt regulations is [printed in the Connecticut Law Journal] posted on the eRegulations System not later than twenty days after the date of implementation. Such policies and procedures shall be valid until the time final regulations are effective.
This act shall take effect as follows and shall amend the following sections:
October 1, 2018