00 Enrolled SB 81 01 Relating to criminal and civil history record checks and requirements; relating to licenses, 02 certifications, appeals, and authorizations by the Department of Health and Social Services; 03 relating to child protection information; and providing for an effective date. 04 _______________ 05 * Section 1. AS 12.62.400(a) is amended by adding a new paragraph to read: 06 (19) licensure, license renewal, certification, certification renewal, or 07 payment from the Department of Health and Social Services of an individual and an 08 entity subject to the requirements for a criminal history check under AS 47.05.310, 09 including 10 (A) a public home care provider described in AS 47.05.017; 11 (B) a provider of home and community-based waiver services 12 financed under AS 47.07.030(c); 13 (C) a case manager to coordinate community mental health 01 services under AS 47.30.530; 02 (D) an entity listed in AS 47.32.010(b), including an owner, 03 officer, director, member, partner, employee, volunteer, or contractor of an 04 entity; or 05 (E) an individual or entity not described in (A) - (D) of this 06 paragraph that is required by statute or regulation to be licensed or certified by 07 the Department of Health and Social Services or that is eligible to receive 08 payments, in whole or in part, from the Department of Health and Social 09 Services to provide for the health, safety, and welfare of persons who are 10 served by the programs administered by the Department of Health and Social 11 Services. 12 * Sec. 2. AS 17.38.200(a) is amended to read: 13 (a) Each application or renewal application for a registration to operate a 14 marijuana establishment shall be submitted to the board. A renewal application may be 15 submitted up to 90 days before the expiration of the marijuana establishment's 16 registration. When filing an application for a new registration under this subsection, 17 the applicant shall submit the applicant's fingerprints and the fees required by the 18 Department of Public Safety under AS 12.62.160 for criminal justice information and 19 a national criminal history record check. When filing an application for renewal of 20 registration, an applicant shall submit the applicant's fingerprints and the fees 21 required by the Department of Public Safety under AS 12.62.160 for criminal 22 justice information and a national criminal history record check every five years. 23 The board shall forward the fingerprints and fees to the Department of Public Safety to 24 obtain a report of criminal justice information under AS 12.62 and a national criminal 25 history record check under AS 12.62.400. 26 * Sec. 3. AS 44.62.330(a)(41) is amended to read: 27 (41) Department of Health and Social Services relating to the civil 28 history databases [CENTRALIZED REGISTRY] under AS 47.05.330 - 47.05.390; 29 * Sec. 4. AS 47.05.310(b) is amended to read: 30 (b) The department may not issue or renew a license or a certification for an 31 entity or an individual that is in violation of (a) of this section or that would be in 01 violation based on the information received as part of the application process. 02 * Sec. 5. AS 47.05.310(d) is amended to read: 03 (d) An entity or an individual shall provide to the department a release of 04 information authorization for a criminal history check under this section for each 05 [AN] individual who is not a recipient of services from the entity, who is not in the 06 custody of the department, and, after the entity applies for or has been issued a 07 license, license renewal, certification, or certification renewal by the department, 08 (1) who intends to become an owner of the entity, or an officer, 09 director, partner, member, or principal of the business organization that owns the 10 entity; 11 (2) whom the entity intends to hire or retain as the operator of the 12 entity's business; 13 (3) whom the entity intends to hire or retain as an employee, 14 independent contractor, or unsupervised volunteer of the entity; or 15 (4) who will be present in the entity or at the places of operation of the 16 entity, and would have regular contact with individuals who receive services from the 17 entity, but who is not a family member or visitor of an individual who receives 18 services from the entity. 19 * Sec. 6. AS 47.05.310(e) is amended to read: 20 (e) An individual for whom a release of information authorization has been 21 provided to the department shall submit the individual's fingerprints to the department, 22 with the fee established under AS 12.62.160, for a report of criminal justice 23 information under AS 12.62 and for submission by the Department of Public Safety to 24 the Federal Bureau of Investigation for a national criminal history record check. The 25 Department of Public Safety shall provide the report of criminal justice information 26 and the results of the national criminal history record check to the department for its 27 use in considering an application for a license, license renewal, certification, or 28 certification renewal, or in considering other approval or selection regarding an entity 29 or individual, for compliance with the standards established in this section. [FOR 30 PURPOSES OF OBTAINING ACCESS TO CRIMINAL JUSTICE INFORMATION 31 MAINTAINED BY THE DEPARTMENT OF PUBLIC SAFETY UNDER AS 12.62, 01 THE DEPARTMENT IS A CRIMINAL JUSTICE AGENCY CONDUCTING A 02 CRIMINAL JUSTICE ACTIVITY.] The department may waive the requirement for 03 fingerprint submission if an individual is unable to provide fingerprints due to a 04 medical or physical condition that is documented by a licensed physician. 05 * Sec. 7. AS 47.05.310(f) is amended to read: 06 (f) The provisions of this section do not apply if the department grants an 07 exception from a requirement of (a) - (e) of this section under a regulation adopted by 08 the department or if the department grants a variance under AS 47.05.360. 09 * Sec. 8. AS 47.05.310(h) is repealed and reenacted to read: 10 (h) For purposes of this section, in place of nonissuance or nonrenewal of a 11 license or certification, an entity or individual that is not required to be licensed or 12 certified by the department or a person wishing to become an entity or individual that 13 is not required to be licensed or certified by the department is ineligible to receive a 14 payment, in whole or in part, from the department to provide for the health, safety, and 15 welfare of persons who are served by the programs administered by the department if 16 the entity or individual is in violation of this section or would be in violation of this 17 section based on information received by the department as part of an application, 18 approval, or selection process. 19 * Sec. 9. AS 47.05.310 is amended by adding a new subsection to read: 20 (l) A person is presumed to be acting in good faith and is immune from civil 21 or criminal liability if the person 22 (1) makes a report of medical assistance fraud, abuse, neglect, or 23 exploitation; 24 (2) submits information to a civil history database identified under 25 AS 47.05.330; or 26 (3) fails to hire or retain an employee or unsupervised volunteer 27 because the employee or unsupervised volunteer is included in a civil history database 28 identified under AS 47.05.330. 29 * Sec. 10. AS 47.05 is amended by adding a new section to read: 30 Sec. 47.05.325. Civil history; civil history check; compliance. (a) The 31 department shall establish by regulation civil history standards for denial of issuance 01 or renewal of a license or certification for an individual or for an entity if the 02 individual who is applying for a license, license renewal, certification, or certification 03 renewal is 04 (1) a biological or adoptive parent, guardian, custodian, or Indian 05 custodian of a child who is or was the subject of a child-in-need-of-aid petition under 06 AS 47.10 and the individual had custody of the child at the time the child was the 07 subject of a petition; or 08 (2) the subject of a finding or circumstance described in 09 AS 47.05.330(a). 10 (b) If an individual is the subject of a petition or finding or circumstance 11 described in (a) of this section, or a substantially similar provision in another 12 jurisdiction, the individual may not own an entity or be an officer, director, partner, 13 member, employee, or principal of the business organization that owns an entity. In 14 addition, an entity may not 15 (1) allow that individual to operate the entity; 16 (2) hire or retain that individual at the entity as an employee, 17 independent contractor, or unsupervised volunteer of the entity; 18 (3) allow that individual to reside in the entity, unless that individual 19 receives services from the entity or is in the custody of the state; or 20 (4) allow that individual to be present in the entity if the individual 21 would have regular contact with individuals who receive services from the entity, 22 unless that individual is a family member of or visitor of an individual who receives 23 services from the entity. 24 (c) An entity or an individual shall provide to the department a release of 25 information authorization for a civil history check under this section for each 26 individual who is not a recipient of services from the entity, who is not in the custody 27 of the department, and, after the entity applies for or has been issued a license, license 28 renewal, certification, or certification renewal by the department, 29 (1) who intends to become an owner of the entity, or an officer, 30 director, partner, member, or principal of the business organization that owns the 31 entity; 01 (2) whom the entity intends to hire or retain as the operator of the 02 entity's business; 03 (3) whom the entity intends to hire or retain as an employee, 04 independent contractor, or unsupervised volunteer of the entity; or 05 (4) who will be present in the entity or at the places of operation of the 06 entity, and would have regular contact with individuals who receive services from the 07 entity, but who is not a family member of or visitor of an individual who receives 08 services from the entity. 09 (d) For purposes of this section, in place of nonissuance or nonrenewal of a 10 license or certification, an entity or individual that is not required to be licensed or 11 certified by the department or a person wishing to become an entity or individual that 12 is not required to be licensed or certified by the department is instead ineligible to 13 receive a payment, in whole or in part, from the department to provide for the health, 14 safety, and welfare of persons who are served by the programs administered by the 15 department if the entity or individual is in violation of this section or would be in 16 violation of this section based on information received by the department as part of an 17 application, approval, or selection process. 18 (e) The department shall by regulation identify other governmental agencies or 19 political subdivisions of the state that can request information that is required under 20 this section for a similar purpose. 21 (f) The provisions of this section do not apply if the department grants an 22 exception from the requirements of (a) or (b) of this section under a regulation adopted 23 by the department or if the department grants a variance under AS 47.05.360. 24 (g) A person is presumed to be acting in good faith and is immune from civil 25 and criminal liability if the person 26 (1) makes a report of medical assistance fraud, abuse, neglect, or 27 exploitation; 28 (2) submits information to a civil history database identified under 29 AS 47.05.330; or 30 (3) fails to hire or retain an employee or unsupervised volunteer 31 because the employee or unsupervised volunteer is included in a civil history database 01 identified under AS 47.05.330. 02 (h) The department shall by regulation establish standards for the 03 consideration and use by the department, an entity, or an individual of the civil history 04 of an individual obtained under this section. 05 * Sec. 11. AS 47.05.330 is repealed and reenacted to read: 06 Sec. 47.05.330. Identification of civil history databases for a civil history 07 check; confidentiality. (a) The department shall by regulation identify each database 08 the department will review when conducting a civil history check under AS 47.05.325 09 to identify each individual 10 (1) whom a court or the department has found 11 (A) to have committed abuse, neglect, undue influence, or 12 exploitation of a vulnerable adult; 13 (B) under AS 47.32 or regulations adopted under AS 47.32, to 14 have significantly adversely affected the health, safety, or welfare of an 15 individual who is receiving a service from an entity licensed under AS 47.32; a 16 finding described in this subparagraph includes a decision to revoke, suspend, 17 or deny a license or license renewal, or the relinquishment of a license as part 18 of a settlement agreement; 19 (2) who has been subject to criminal or civil penalties for a violation of 20 AS 09.58, AS 47.05, AS 47.07, AS 47.08, or regulations adopted under AS 09.58, 21 AS 47.05, AS 47.07, or AS 47.08; 22 (3) about whom the department or a court has made a substantiated 23 finding of child abuse or neglect under AS 47.10 or AS 47.14; 24 (4) who was a biological or adoptive parent, guardian, custodian, or 25 Indian custodian of a child at the time the child was the subject of a child-in-need-of- 26 aid petition under AS 47.10; 27 (5) who, in the course of employment with the state, has been 28 terminated from employment or has had an allegation of assaultive, abusive, 29 neglectful, or exploitive behavior or actions substantiated; 30 (6) who, in this state or another jurisdiction, for reasons related to 31 abuse, neglect, undue influence, exploitation, or other reasons that are inconsistent 01 with standards for the protection of public health, safety, or welfare, has had a 02 professional license, certification, or similar professional designation revoked, 03 suspended, or denied, or has had a request for renewal of a professional license, 04 certification, or similar professional designation denied; 05 (7) whom another state or jurisdiction has identified on a civil registry 06 or database substantially similar to the databases identified under this section for 07 reasons substantially similar to the reasons identified in (1) - (6) of this subsection. 08 (b) The information gathered under this section is not a public record under 09 AS 40.25.110 and is not subject to public inspection or copying under AS 40.25.110 - 10 40.25.125. However, information gathered under this section may be released to an 11 entity, an individual who is included in a database, a governmental agency, and a 12 political subdivision of the state in a manner provided under this section and 13 regulations adopted under this chapter. 14 * Sec. 12. AS 47.05.350 is amended to read: 15 Sec. 47.05.350. Use of information; immunity. An entity [OR INDIVIDUAL 16 SERVICE PROVIDER] that obtains information about an employee under a criminal 17 history check under AS 47.05.310 or a civil history check under AS 47.05.325 may 18 use that information only as provided for in regulations adopted by the department 19 under this chapter [AS 47.05.320]. However, if an entity [OR INDIVIDUAL 20 SERVICE PROVIDER] reasonably relies on the information provided under the 21 regulations adopted by the department to deny employment to an individual who was 22 selected for hire as an employee, including during a period of provisional 23 employment, the entity [OR INDIVIDUAL SERVICE PROVIDER] is not liable in an 24 action brought by the individual based on the employment determination resulting 25 from the information. 26 * Sec. 13. AS 47.05 is amended by adding a new section to read: 27 Sec. 47.05.360. Variance request; final decision. (a) An individual or entity 28 subject to the provisions of AS 47.05.310 or 47.05.325 may request a variance from 29 the provisions of AS 47.05.310 or 47.05.325 under procedures established by the 30 department by regulation. The procedures must include the establishment of a variance 31 committee to consider requests for variances. A request for a variance may include a 01 request that the department issue a written explanation of incorrect information 02 contained in the civil history databases identified under AS 47.05.330. 03 (b) An individual or entity that is dissatisfied with a decision by a variance 04 committee may, not more than 30 days after the committee issues the decision, apply 05 to the commissioner for reconsideration of the decision. A determination by the 06 commissioner is a final agency decision for purposes of appeal to the superior court. 07 (c) The department shall disclose information and records pertaining to a child 08 subject to AS 47.10 or AS 47.17 to a variance committee as provided under 09 AS 47.10.093(b). 10 * Sec. 14. AS 47.05.390(6) is amended to read: 11 (6) "entity" means an entity listed in AS 47.32.010(b) or an individual 12 service provider as described in AS 47.05.300 and includes an owner, officer, 13 director, member, or partner of the entity; 14 * Sec. 15. AS 47.10.093(b) is amended to read: 15 (b) A state or municipal agency or employee shall disclose appropriate 16 confidential information regarding a case to 17 (1) a guardian ad litem appointed by the court; 18 (2) a person or an agency requested by the department or the child's 19 legal custodian to provide consultation or services for a child who is subject to the 20 jurisdiction of the court under AS 47.10.010 as necessary to enable the provision of 21 the consultation or services; 22 (3) an out-of-home care provider as necessary to enable the out-of- 23 home care provider to provide appropriate care to the child, to protect the safety of the 24 child, and to protect the safety and property of family members and visitors of the out- 25 of-home care provider; 26 (4) a school official as necessary to enable the school to provide 27 appropriate counseling and support services to a child who is the subject of the case, to 28 protect the safety of the child, and to protect the safety of school students and staff; 29 (5) a governmental agency as necessary to obtain that agency's 30 assistance for the department in its investigation or to obtain physical custody of a 31 child; 01 (6) a law enforcement agency of this state or another jurisdiction as 02 necessary for the protection of any child or for actions by that agency to protect the 03 public safety; 04 (7) a member of a multidisciplinary child protection team created 05 under AS 47.14.300 as necessary for the performance of the member's duties; 06 (8) the state medical examiner under AS 12.65 as necessary for the 07 performance of the duties of the state medical examiner; 08 (9) a person who has made a report of harm as required by 09 AS 47.17.020 to inform the person that the investigation was completed and of action 10 taken to protect the child who was the subject of the report; 11 (10) the child support services agency established in AS 25.27.010 as 12 necessary to establish and collect child support for a child who is a child in need of aid 13 under this chapter; 14 (11) a parent, guardian, or caregiver of a child or an entity responsible 15 for ensuring the safety of children as necessary to protect the safety of a child; 16 (12) a review panel, including a variance committee established 17 under AS 47.05.360, established by the department for the purpose of reviewing the 18 actions taken by the department in a specific case; 19 (13) the University of Alaska under the Alaska higher education 20 savings program for children established under AS 47.14.400, but only to the extent 21 that the information is necessary to support the program and only if the information 22 released is maintained as a confidential record by the University of Alaska; 23 (14) a child placement agency licensed under AS 47.32 as necessary to 24 provide services for a child who is the subject of the case; and 25 (15) a state or municipal agency of this state or another jurisdiction 26 that is responsible for delinquent minors, as may be necessary for the administration of 27 services, protection, rehabilitation, or supervision of a child or for actions by the 28 agency to protect the public safety; however, a court may review an objection made to 29 a disclosure under this paragraph; the person objecting to the disclosure bears the 30 burden of establishing by a preponderance of the evidence that disclosure is not in the 31 child's best interest. 01 * Sec. 16. AS 47.17.040 is amended to read: 02 Sec. 47.17.040. Child protection [CENTRAL] registry; confidentiality. (a) 03 The department shall maintain a child protection [CENTRAL] registry of all 04 investigation reports, including substantiated findings under AS 47.10 or AS 47.17 05 [BUT NOT OF THE REPORTS OF HARM]. 06 (b) Investigation reports and reports of harm filed under this chapter are 07 considered confidential and are not subject to public inspection and copying under 08 AS 40.25.110 and 40.25.120. However, in accordance with department regulations, 09 investigation reports, including substantiated findings under AS 47.10 or AS 47.17, 10 may be used by appropriate governmental agencies with child-protection functions, 11 inside and outside the state, in connection with investigations or judicial proceedings 12 involving child abuse, neglect, or custody and in conjunction with licensing action 13 under AS 47.32 or a similar statute in another state. A person [,] not acting in 14 accordance with department regulations [,] who, with criminal negligence, makes 15 public information contained in confidential reports is guilty of a class B 16 misdemeanor. 17 * Sec. 17. AS 47.17.040 is amended by adding new subsections to read: 18 (c) Before a substantiated finding may be placed on the child protection 19 registry and provided as part of a civil history check under AS 47.05.325, the 20 department shall provide the applicant notice of the finding and an opportunity to 21 appeal the finding. The department shall adopt regulations to implement this section. 22 (d) In this section, "governmental agency" includes a tribe or tribal 23 organization conducting child protection functions and a school district. 24 * Sec. 18. AS 47.32.010(c) is amended to read: 25 (c) The provisions of AS 47.05.300 - 47.05.390, regarding criminal history, 26 criminal history checks, criminal history use standards, and civil history databases [A 27 CENTRALIZED REGISTRY], apply to entities listed in (b) of this section, as 28 provided in AS 47.05.300. 29 * Sec. 19. AS 47.32.070 is amended by adding a new subsection to read: 30 (c) In considering whether to deny an application for or place a condition on a 31 license, the department shall consider the licensing history of the applicant, including 01 any enforcement action under this chapter. 02 * Sec. 20. AS 47.32.090 is amended by adding a new subsection to read: 03 (d) The department may investigate an employee, contractor, or volunteer of a 04 licensed entity and may substantiate that the individual engaged in conduct that would 05 significantly affect the health, safety, or welfare of an individual who is receiving a 06 service from the entity. If the conduct is substantiated against an employee, contractor, 07 or volunteer, the department shall issue a notice of the finding to the person and 08 include the person in the appropriate civil history database identified under 09 AS 47.05.330. Before a substantiated finding against an employee, contractor, or 10 volunteer may be included in a civil history database and provided as part of a check 11 under AS 47.05.325, the department shall provide the applicant notice of the finding 12 and an opportunity to appeal the finding. The department shall adopt regulations to 13 implement this subsection. In this subsection, "volunteer" includes an individual 14 placed in a facility for training, educational, or internship purposes. 15 * Sec. 21. AS 47.32.140(d) is amended to read: 16 (d) The department may take one or more of the following enforcement 17 actions under this section: 18 (1) delivery of a warning notice to the licensed entity and to any 19 additional person who was the subject of the investigation or inspection; 20 (2) modification of the term or scope of the entity's existing license, 21 including changing a biennial license to a provisional license or adding a condition to 22 the license; 23 (3) suspension of the entity's operations for a period of time set by the 24 department; 25 (4) suspension of or a ban on the entity's provision of services to 26 individuals not already receiving services from the entity for a period of time set by 27 the department; 28 (5) nonrenewal of the entity's license; 29 (6) revocation of the entity's license or, if the entity is not licensed 30 under this chapter, revocation of the entity's ability to become licensed under this 31 chapter; 01 (7) issuance of an order requiring closure, immediate or otherwise, of 02 the entity regardless of whether the entity is licensed or unlicensed; 03 (8) denial of payments under AS 47.07 for the entity's provision of 04 services to an individual not already receiving services from the entity; 05 (9) assumption of either temporary or permanent management of the 06 entity or pursuit of a court-ordered receiver for the entity; 07 (10) reduction of the number of individuals receiving services from the 08 entity under the license; 09 (11) imposition of a penalty authorized under law; 10 (12) inclusion in a civil history database identified [THE 11 REGISTRY ESTABLISHED] under AS 47.05.330 [; 12 (13) REQUIREMENT THAT THE ENTITY PREPARE AND 13 SUBMIT A PLAN OF CORRECTION]. 14 * Sec. 22. AS 47.32.150(b) is amended to read: 15 (b) Upon receipt of a timely request for a hearing by an entity regarding an 16 enforcement action under AS 47.05.310, AS 47.32.070, or 47.32.140(d)(1), (2), (4), 17 (8), (10), (11), or (12) [,] or (f) [(13)], the department shall conduct a hearing in front 18 of an officer appointed by the commissioner. A hearing under this subsection may be 19 conducted on the record, in an informal manner, and may not be conducted under 20 AS 44.62 or AS 44.64. The appointed hearing officer may be a state employee. 21 * Sec. 23. AS 47.32.180 is amended by adding a new subsection to read: 22 (c) Notwithstanding any other provision of law, the department may, upon 23 request, share information with a law enforcement agency that is investigating a crime 24 that is also the subject of a licensing investigation obtained during a current 25 investigation. 26 * Sec. 24. AS 47.32.190 is amended to read: 27 Sec. 47.32.190. Access to information. Notwithstanding any contrary 28 provision of law, the divisions of the department assigned to implement this chapter 29 [PUBLIC HEALTH AND PUBLIC ASSISTANCE FUNCTIONS] shall have access 30 to any information compiled or retained by other divisions of [WITHIN] the 31 department, regardless of the nature of the information or whether the information is 01 considered confidential, in order to assist in administering the provisions of this 02 chapter. 03 * Sec. 25. AS 47.05.310(c), 47.05.310(i), 47.05.390(1), 47.05.390(2), and 47.05.390(3) are 04 repealed. 05 * Sec. 26. The uncodified law of the State of Alaska is amended by adding a new section to 06 read: 07 APPLICABILITY. This Act applies to an application or request for licensure, license 08 renewal, certification, certification renewal, or payment submitted to the Department of 09 Health and Social Services by an entity or individual subject to AS 47.05.300 - 47.05.390, as 10 amended by secs. 4 - 11 of this Act, on or after the effective date of this Act. 11 * Sec. 27. The uncodified law of the State of Alaska is amended by adding a new section to 12 read: 13 REVISOR'S INSTRUCTION. The revisor of statutes is requested to change the 14 (1) heading of art. 3 of AS 47.05 from "Criminal History; Registry" to 15 "Criminal and Civil History"; and 16 (2) catch line of AS 47.32.140 from "Enforcement actions" to "Notice of 17 violation; compliance and enforcement proceedings." 18 * Sec. 28. This Act takes effect immediately under AS 01.10.070(c).