HB 270: "An Act relating to criminal and civil history requirements for individuals and entities licensed or certified by the Department of Health and Social Services; relating to the centralized registry for certain individuals or entities that are licensed or certified by the Department of Health and Social Services or are eligible to receive payment from certain programs of the department; and providing for an effective date."
00 HOUSE BILL NO. 270 01 "An Act relating to criminal and civil history requirements for individuals and entities 02 licensed or certified by the Department of Health and Social Services; relating to the 03 centralized registry for certain individuals or entities that are licensed or certified by the 04 Department of Health and Social Services or are eligible to receive payment from 05 certain programs of the department; and providing for an effective date." 06 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA: 07 * Section 1. AS 44.62.330(a)(45) is amended to read: 08 (45) Department of Health and Social Services relating to the 09 centralized registry under AS 47.05.360 [AS 47.05.330 - 47.05.390]; 10 * Sec. 2. AS 47.05.310 is repealed and reenacted to read: 11 Sec. 47.05.310. Criminal history; criminal history check; compliance. (a) If 12 an individual has been charged with, convicted of, found not guilty by reason of 13 insanity for, or adjudicated as a delinquent for a crime that is inconsistent with the
01 standards for licensure or certification established by the department by regulation, 02 that individual may not own an entity, or be an officer, director, partner, member, or 03 principal of the business organization that owns an entity. In addition, an entity may 04 not 05 (1) allow that individual to operate the entity; 06 (2) hire or retain that individual at the entity as an employee, 07 independent contractor, or volunteer of the entity; 08 (3) allow that individual to reside in the entity, unless that individual 09 receives services from the entity or is in the custody of the state; or 10 (4) allow that individual to be present in the entity if the individual 11 would have regular contact with an individual who receives services from the entity, 12 unless that individual is a family member of or visitor of an individual who receives 13 services from the entity. 14 (b) The department may not issue or renew a license or a certification for an 15 entity or an individual that is in violation of (a) of this section or that would be in 16 violation of (a) of this section based on the information received as part of the 17 application process. 18 (c) An entity or an individual shall provide to the department a release of 19 information authorization for a criminal history check under this section and a 20 centralized registry check under AS 47.05.325 for every individual 21 (1) who is not a recipient of services from the entity; 22 (2) who is not in the custody of the department; and 23 (3) after the entity applied for or has been issued a license, license 24 renewal, certification, or certification renewal by the department, 25 (A) who intends to become an owner of an entity or an officer, 26 director, partner, member, employee, or principal of the business organization 27 that owns an entity; 28 (B) whom the entity intends to hire or retain as the operator of 29 the entity's business; 30 (C) whom the entity intends to hire or retain as an employee, 31 independent contractor, or volunteer of the entity; or
01 (D) who will be present in the entity or at the places of 02 operation of the entity and would have regular contact with individuals who 03 receive services from the entity, but who is not a family member or visitor of 04 an individual who receives services from the entity. 05 (d) An individual for whom a release of information authorization has been 06 provided to the department shall submit the individual's fingerprints to the department, 07 with the fee established under AS 12.62.160, for a report of criminal justice 08 information under AS 12.62 and for submission by the Department of Public Safety to 09 the Federal Bureau of Investigation for a national criminal history record check. The 10 Department of Public Safety shall provide the report of criminal justice information 11 and the results of the national criminal history record check to the department for its 12 use in considering an application for a license or license renewal or a certification or 13 certification renewal, or in considering other approval or selection regarding an entity, 14 for compliance with the standards established in this section. For purposes of 15 obtaining access to criminal justice information maintained by the Department of 16 Public Safety under AS 12.62, the department is a criminal justice agency conducting 17 a criminal justice activity. The department may waive the requirement for fingerprint 18 submission if an individual is unable to provide fingerprints due to a medical or 19 physical condition that is documented by a licensed medical professional. 20 (e) The department may establish by regulation standards to grant a variance 21 from the requirements of this section. 22 (f) An individual service provider is subject to the provisions of this section as 23 if the individual service provider was an entity subject to those provisions. 24 (g) For purposes of this section, in place of nonissuance or nonrenewal of a 25 license or certification, an entity or individual service provider that is not required to 26 be licensed or certified by the department or a person wishing to become an entity or 27 individual service provider that is not required to be licensed or certified by the 28 department is ineligible to receive a payment, in whole or in part, from the department 29 to provide for the health, safety, and welfare of persons who are served by the 30 programs administered by the department if the entity, individual service provider, or 31 person is in violation of this section or would be in violation of this section based on
01 information received by the department as part of an application, approval, or 02 selection process. 03 (h) A person is presumed to be acting in good faith and is immune from civil 04 or criminal liability if the person, in making a report under this section or cooperating 05 with a review under this chapter, 06 (1) makes a report of medical assistance fraud, abuse, neglect, or 07 exploitation; 08 (2) submits information to the centralized registry; or 09 (3) fails to hire or retain an employee or volunteer because the 10 employee or volunteer is included in the centralized registry. 11 * Sec. 3. AS 47.05 is amended by adding a new section to read: 12 Sec. 47.05.325. Civil history; centralized registry check; compliance. (a) 13 The department may not issue or renew a license or certification for an individual or 14 for an entity if an individual is applying for a license, license renewal, certification, or 15 certification renewal for the entity and that individual 16 (1) is a biological or adoptive parent, guardian, custodian, or Indian 17 custodian of a child who is or was the subject of a child-in-need-of-aid petition under 18 AS 47.10; or 19 (2) is the subject of a finding described in AS 47.05.330. 20 (b) If an individual is the subject of a petition or finding described in (a) of 21 this section, or a substantially similar provision in another jurisdiction, the individual 22 may not own an entity or be an officer, director, partner, member, employee, or 23 principal of the business organization that owns an entity. In addition, an entity may 24 not 25 (1) allow that individual to operate the entity; 26 (2) hire or retain that individual at the entity as an employee, 27 independent contractor, or volunteer of the entity; 28 (3) allow that individual to reside in the entity, unless that individual 29 receives services from the entity or is in the custody of the state; or 30 (4) allow that individual to be present in the entity if the individual 31 would have regular contact with individuals who receive services from the entity,
01 unless that individual is a family member of or visitor of an individual who receives 02 services from the entity. 03 (c) The department shall require all licensed entities under AS 47.32 and 04 enrolled providers under the Medicaid program to provide the information required to 05 be on the centralized registry. The information must be in a format established by the 06 department and submitted within the time established by the department. The 07 department may also submit information necessary for the operation of the centralized 08 registry. An entity or individual that is exempt from department licensure or 09 certification and that does not receive money from the department for its services may 10 voluntarily submit information necessary for the operation of the centralized registry. 11 (d) For purposes of this section, in place of nonissuance or nonrenewal of a 12 license or certification, an entity or individual service provider that is not required to 13 be licensed or certified by the department or a person wishing to become an entity or 14 individual service provider that is not required to be licensed or certified by the 15 department is instead ineligible to receive a payment, in whole or in part, from the 16 department to provide for the health, safety, and welfare of persons who are served by 17 the programs administered by the department if the entity, individual service provider, 18 or person is in violation of this section or would be in violation of this section based 19 on information received by the department as part of an application, approval, or 20 selection process. 21 (e) The department shall by regulation identify other governmental agencies or 22 political subdivisions of the state that can request information that is required under 23 this section for a similar purpose. 24 (f) The department may establish by regulation standards for a variance from 25 the requirements of this section. 26 (g) A person is presumed to be acting in good faith and is immune from civil 27 and criminal liability if the person, in making a report under this chapter or 28 cooperating with a review under this chapter, 29 (1) makes a report of medical assistance fraud, abuse, neglect, or 30 exploitation; 31 (2) submits information to the centralized registry; or
01 (3) fails to hire or retain an employee or volunteer because the 02 employee or volunteer is included in the centralized registry. 03 * Sec. 4. AS 47.05.330 is repealed and reenacted to read: 04 Sec. 47.05.330. Centralized registry; confidentiality. (a) The department 05 shall by regulation provide for a centralized registry to identify and list individuals 06 who have been found to 07 (1) have committed abuse, neglect, undue influence, or exploitation, or 08 to have significantly impacted health, safety, or welfare under AS 47.32 or regulations 09 adopted under AS 47.32; 10 (2) have been sanctioned by the state Medicaid program; 11 (3) have a license revoked or suspended under AS 47.32 or the 12 licensee voluntarily relinquished a license as part of a settlement agreement in lieu of 13 an enforcement action to suspend or revoke a license; 14 (4) have a license denied under AS 47.32 or had a nonrenewal of a 15 current license; 16 (5) have a substantiated finding of child abuse or neglect under 17 AS 47.10 or AS 47.17; 18 (6) be a biological or adoptive parent, guardian, custodian, or Indian 19 custodian of a child who was found to be a child in need of aid under AS 47.10; or 20 (7) have been terminated from employment with the department, or 21 would have been terminated from employment with the department if not for their 22 resignation, for assaultive, abusive, neglectful, or exploitive behavior or actions; 23 (8) have been identified by another state or jurisdiction as a person 24 identified on a centralized registry, or substantially similar registry, for reasons 25 substantially similar to those in (1) - (7) of this subsection. 26 (b) The centralized registry is not a public record under AS 40.25.110. 27 Information contained in the registry is confidential and is not subject to public 28 inspection and copying under AS 40.25.110 - 40.25.125. However, information 29 contained in the centralized registry may be released to entities, individual service 30 providers, and governmental agencies or political subdivisions of the state in a manner 31 provided under this section and regulations adopted under this chapter.
01 * Sec. 5. AS 47.05.350 is amended to read: 02 Sec. 47.05.350. Use of information; immunity. An entity or individual 03 service provider that obtains information about an employee under a criminal history 04 check under AS 47.05.310 or a civil history check under AS 47.05.325 may use that 05 information only as provided for in regulations adopted by the department under this 06 chapter [AS 47.05.320]. However, if an entity or individual service provider 07 reasonably relies on the information provided under the regulations adopted by the 08 department to deny employment to an individual who was selected for hire as an 09 employee, including during a period of provisional employment, the entity or 10 individual service provider is not liable in an action brought by the individual based on 11 the employment determination resulting from the information. 12 * Sec. 6. AS 47.05 is amended by adding a new section to read: 13 Sec. 47.05.360. Variance, reconsideration, or appeal. (a) A person or entity 14 subject to the provisions of AS 47.05.310 or 47.05.325 may request the department to 15 delete, correct, or modify information in the registry. 16 (b) If the information is correct, a person or entity subject to the provisions of 17 AS 47.05.310 or 47.05.325 may 18 (1) seek a variance; 19 (2) seek reconsideration by the commissioner if the variance is denied; 20 (3) if information is incorrect, request the department to delete, correct, 21 or modify the information in the registry. 22 (c) A determination under (a) or (b) of this section is a final agency decision. 23 * Sec. 7. AS 47.05.390(6) is amended to read: 24 (6) "entity" means an entity listed in AS 47.05.300 and 25 AS 47.32.010(b) and includes an owner, officer, director, member, or partner of the 26 entity; 27 * Sec. 8. AS 47.17.040 is amended to read: 28 Sec. 47.17.040. Child protection [CENTRAL] registry; confidentiality. (a) 29 The department shall maintain a child protection [CENTRAL] registry of all 30 investigation reports, including, substantiated findings under AS 47.10 or 31 AS 47.17, but not of the reports of harm.
01 (b) Investigation reports and reports of harm filed under this chapter are 02 considered confidential and are not subject to public inspection and copying under 03 AS 40.25.110 and 40.25.120. However, in accordance with department regulations, 04 investigation reports, including substantiated findings under AS 47.10 or AS 47.17, 05 may be used by appropriate governmental agencies with child-protection functions, 06 inside and outside the state, in connection with investigations or judicial proceedings 07 involving child abuse, neglect, or custody and in conjunction with licensing action 08 under AS 47.32 or a similar statute in another state. A person [,] not acting in 09 accordance with department regulations [,] who, with criminal negligence, makes 10 public information contained in confidential reports is guilty of a class B 11 misdemeanor. 12 * Sec. 9. AS 47.17.040 is amended by adding new subsections to read: 13 (c) Before a substantiated finding may be placed on the child protection 14 registry under AS 47.17.040 and provided as part of a check under AS 47.05.325, the 15 department must provide the applicant notice of the finding and provide the 16 opportunity for the applicant to appeal the finding. The department shall adopt 17 regulations to implement this section. 18 (d) In this section, 19 (1) "governmental agency" includes tribes or tribal organizations 20 conducting child protection functions; 21 (2) "investigations or judicial proceedings" means any governmental 22 agency, including school districts or educational instructors, that provides services 23 related to the health, safety, and welfare of children. 24 * Sec. 10. AS 47.32.070 is amended by adding a new subsection to read: 25 (c) In considering whether to deny a license or to place a condition on a 26 license, the department shall consider the licensing history of the applicant, including 27 any enforcement action under this chapter. 28 * Sec. 11. AS 47.32.090 is amended by adding a new subsection to read: 29 (d) The department may investigate an employee, contractor, or volunteer of a 30 licensed entity and may substantiate that an individual engaged in conduct that would 31 significantly impact the health, safety, and welfare of a resident in care. If the conduct
01 is substantiated against an employee, contractor, or volunteer, the department shall 02 issue a notice of the finding and that the person shall be placed on the centralized 03 registry under AS 47.05.330. Before a substantiated finding against an employee, 04 contractor, or volunteer may be placed on the centralized registry and provided as part 05 of a check under AS 47.05.325, the department shall provide the applicant notice of 06 the finding and the ability to appeal the finding. The department shall adopt 07 regulations under AS 44.62 to implement this section. 08 * Sec. 12. AS 47.32.150(b) is amended to read: 09 (b) Upon receipt of a timely request for a hearing by an entity regarding an 10 enforcement action under AS 47.32.070 or 47.32.140(d)(1), (2), (4), (8), (10), (11), 11 (12), or (f) [(13)], the department shall conduct a hearing in front of an officer 12 appointed by the commissioner. A hearing under this subsection may be conducted on 13 the record, in an informal manner, and may not be conducted under AS 44.62 or 14 AS 44.64. The appointed hearing officer may be a state employee. 15 * Sec. 13. AS 47.32.180 is amended by adding a new subsection to read: 16 (c) Notwithstanding any other provision of law, if a law enforcement agency 17 is investigating a crime that is also the subject of a licensing investigation, the 18 department may share all information with the law enforcement agency upon request. 19 * Sec. 14. AS 47.32.190 is amended to read: 20 Sec. 47.32.190. Access to information. Notwithstanding any contrary 21 provision of law, the divisions of the department assigned to implement this chapter 22 [PUBLIC HEALTH AND PUBLIC ASSISTANCE FUNCTIONS] shall have access 23 to any information compiled or retained by other divisions within the department, 24 regardless of the nature of the information or whether the information is considered 25 confidential, in order to assist in administering the provisions of this chapter. 26 * Sec. 15. AS 47.05.390(1) and AS 47.32.140(d)(13) are repealed. 27 * Sec. 16. The uncodified law of the State of Alaska is amended by adding a new section to 28 read: 29 APPLICABILITY. This Act applies whether the criminal or civil conduct occurred 30 before, on, or after the effective date of this Act. 31 * Sec. 17. The uncodified law of the State of Alaska is amended by adding a new section to
01 read: 02 REVISOR'S INSTRUCTION. The revisor of statutes is requested to change the 03 (1) heading of art. 3 of AS 47.05 from "Criminal History; Registry" to 04 "Criminal and Civil History; Registry"; and 05 (2) catch line for AS 47.32.140 from "Enforcement actions" to "Notice; plan 06 of correction; allegation of compliance; enforcement action." 07 * Sec. 18. This Act takes effect immediately under AS 01.10.070(c).