CSHB 162(HSS): "An Act relating to criminal and civil history record checks and requirements; relating to licenses, certifications, appeals, and authorizations by the Department of Health and Social Services; relating to child protection information; and providing for an effective date."
00 CS FOR HOUSE BILL NO. 162(HSS) 01 "An Act relating to criminal and civil history record checks and requirements; relating 02 to licenses, certifications, appeals, and authorizations by the Department of Health and 03 Social Services; relating to child protection information; and providing for an effective 04 date." 05 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA: 06 * Section 1. AS 12.62.400(a) is amended by adding a new paragraph to read: 07 (19) licensure, license renewal, certification, certification renewal, or 08 payment from the Department of Health and Social Services of an individual and an 09 entity subject to the requirements for a criminal history check under AS 47.05.310, 10 including 11 (A) a public home care provider described in AS 47.05.017; 12 (B) a provider of home and community-based waiver services 13 financed under AS 47.07.030(c); 14 (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 44.62.330(a)(41) is amended to read: 13 (41) Department of Health and Social Services relating to the civil 14 history databases [CENTRALIZED REGISTRY] under AS 47.05.330 - 47.05.390; 15 * Sec. 3. AS 47.05.310(b) is amended to read: 16 (b) The department may not issue or renew a license or a certification for an 17 entity or an individual that is in violation of (a) of this section or that would be in 18 violation based on the information received as part of the application process. 19 * Sec. 4. AS 47.05.310(d) is amended to read: 20 (d) An entity or an individual shall provide to the department a release of 21 information authorization for a criminal history check under this section for each 22 [AN] individual who is not a recipient of services from the entity, who is not in the 23 custody of the department, and, after the entity applies for or has been issued a 24 license, license renewal, certification, or certification renewal by the department, 25 (1) who intends to become an owner of the entity, or an officer, 26 director, partner, member, or principal of the business organization that owns the 27 entity; 28 (2) whom the entity intends to hire or retain as the operator of the 29 entity's business; 30 (3) whom the entity intends to hire or retain as an employee, 31 independent contractor, or unsupervised volunteer of the entity; or
01 (4) who will be present in the entity or at the places of operation of the 02 entity, and would have regular contact with individuals who receive services from the 03 entity, but who is not a family member or visitor of an individual who receives 04 services from the entity. 05 * Sec. 5. AS 47.05.310(e) is amended to read: 06 (e) An individual for whom a release of information authorization has been 07 provided to the department shall submit the individual's fingerprints to the department, 08 with the fee established under AS 12.62.160, for a report of criminal justice 09 information under AS 12.62 and for submission by the Department of Public Safety to 10 the Federal Bureau of Investigation for a national criminal history record check. The 11 Department of Public Safety shall provide the report of criminal justice information 12 and the results of the national criminal history record check to the department for its 13 use in considering an application for a license, license renewal, certification, or 14 certification renewal, or in considering other approval or selection regarding an entity 15 or individual, for compliance with the standards established in this section. [FOR 16 PURPOSES OF OBTAINING ACCESS TO CRIMINAL JUSTICE INFORMATION 17 MAINTAINED BY THE DEPARTMENT OF PUBLIC SAFETY UNDER AS 12.62, 18 THE DEPARTMENT IS A CRIMINAL JUSTICE AGENCY CONDUCTING A 19 CRIMINAL JUSTICE ACTIVITY.] The department may waive the requirement for 20 fingerprint submission if an individual is unable to provide fingerprints due to a 21 medical or physical condition that is documented by a licensed physician. 22 * Sec. 6. AS 47.05.310(f) is amended to read: 23 (f) The provisions of this section do not apply if the department grants an 24 exception from a requirement of (a) - (e) of this section under a regulation adopted by 25 the department or if the department grants a variance under AS 47.05.360. 26 * Sec. 7. AS 47.05.310(h) is repealed and reenacted to read: 27 (h) For purposes of this section, in place of nonissuance or nonrenewal of a 28 license or certification, an entity or individual that is not required to be licensed or 29 certified by the department or a person wishing to become an entity or individual that 30 is not required to be licensed or certified by the department is ineligible to receive a 31 payment, in whole or in part, from the department to provide for the health, safety, and
01 welfare of persons who are served by the programs administered by the department if 02 the entity or individual is in violation of this section or would be in violation of this 03 section based on information received by the department as part of an application, 04 approval, or selection process. 05 * Sec. 8. AS 47.05.310 is amended by adding a new subsection to read: 06 (l) A person is presumed to be acting in good faith and is immune from civil 07 or criminal liability if the person 08 (1) makes a report of medical assistance fraud, abuse, neglect, or 09 exploitation; 10 (2) submits information to a civil history database identified under 11 AS 47.05.330; or 12 (3) fails to hire or retain an employee or unsupervised volunteer 13 because the employee or unsupervised volunteer is included in a civil history database 14 identified under AS 47.05.330. 15 * Sec. 9. AS 47.05 is amended by adding a new section to read: 16 Sec. 47.05.325. Civil history; civil history check; compliance. (a) The 17 department shall establish by regulation civil history standards for denial of issuance 18 or renewal of a license or certification for an individual or for an entity if the 19 individual who is applying for a license, license renewal, certification, or certification 20 renewal is 21 (1) a biological or adoptive parent, guardian, custodian, or Indian 22 custodian of a child who is or was the subject of a child-in-need-of-aid petition under 23 AS 47.10 and if the individual had custody of the child at the time the child was the 24 subject of a petition; or 25 (2) the subject of a finding or circumstance described in 26 AS 47.05.330(a). 27 (b) If an individual is the subject of a petition or finding or circumstance 28 described in (a) of this section, or a substantially similar provision in another 29 jurisdiction, the individual may not own an entity or be an officer, director, partner, 30 member, employee, or principal of the business organization that owns an entity. In 31 addition, an entity may not
01 (1) allow that individual to operate the entity; 02 (2) hire or retain that individual at the entity as an employee, 03 independent contractor, or unsupervised volunteer of the entity; 04 (3) allow that individual to reside in the entity, unless that individual 05 receives services from the entity or is in the custody of the state; or 06 (4) allow that individual to be present in the entity if the individual 07 would have regular contact with individuals who receive services from the entity, 08 unless that individual is a family member of or visitor of an individual who receives 09 services from the entity. 10 (c) An entity or an individual shall provide to the department a release of 11 information authorization for a civil history check under this section for each 12 individual who is not a recipient of services from the entity, who is not in the custody 13 of the department, and, after the entity applies for or has been issued a license, license 14 renewal, certification, or certification renewal by the department, 15 (1) who intends to become an owner of the entity, or an officer, 16 director, partner, member, or principal of the business organization that owns the 17 entity; 18 (2) whom the entity intends to hire or retain as the operator of the 19 entity's business; 20 (3) whom the entity intends to hire or retain as an employee, 21 independent contractor, or unsupervised volunteer of the entity; or 22 (4) who will be present in the entity or at the places of operation of the 23 entity, and would have regular contact with individuals who receive services from the 24 entity, but who is not a family member or visitor of an individual who receives 25 services from the entity. 26 (d) For purposes of this section, in place of nonissuance or nonrenewal of a 27 license or certification, an entity or individual that is not required to be licensed or 28 certified by the department or a person wishing to become an entity or individual that 29 is not required to be licensed or certified by the department is instead ineligible to 30 receive a payment, in whole or in part, from the department to provide for the health, 31 safety, and welfare of persons who are served by the programs administered by the
01 department if the entity or individual is in violation of this section or would be in 02 violation of this section based on information received by the department as part of an 03 application, approval, or selection process. 04 (e) The department shall by regulation identify other governmental agencies or 05 political subdivisions of the state that can request information that is required under 06 this section for a similar purpose. 07 (f) The provisions of this section do not apply if the department grants an 08 exception from the requirements of (a) or (b) of this section under a regulation adopted 09 by the department or if the department grants a variance under AS 47.05.360. 10 (g) A person is presumed to be acting in good faith and is immune from civil 11 and criminal liability if the person 12 (1) makes a report of medical assistance fraud, abuse, neglect, or 13 exploitation; 14 (2) submits information to a civil history database identified under 15 AS 47.05.330; or 16 (3) fails to hire or retain an employee or unsupervised volunteer 17 because the employee or unsupervised volunteer is included in a civil history database 18 identified under AS 47.05.330. 19 (h) The department shall by regulation establish standards for the 20 consideration and use by the department, an entity, or an individual of the civil history 21 of an individual obtained under this section. 22 * Sec. 10. AS 47.05.330 is repealed and reenacted to read: 23 Sec. 47.05.330. Identification of civil history databases for a civil history 24 check; confidentiality. (a) The department shall by regulation identify each database 25 the department will review when conducting a civil history check under AS 47.05.325 26 to identify each individual 27 (1) whom a court or the department has found 28 (A) to have committed abuse, neglect, undue influence, or 29 exploitation of a vulnerable adult; 30 (B) under AS 47.32 or regulations adopted under AS 47.32, to 31 have significantly adversely affected the health, safety, or welfare of an
01 individual who is receiving a service from an entity licensed under AS 47.32; a 02 finding described in this subparagraph includes a decision to revoke, suspend, 03 or deny a license or license renewal, or the relinquishment of a license as part 04 of a settlement agreement; 05 (2) who has been subject to criminal or civil penalties for a violation of 06 AS 09.58, AS 47.05, AS 47.07, AS 47.08, or regulations adopted under AS 09.58, 07 AS 47.05, AS 47.07, or AS 47.08; 08 (3) about whom the department or a court has made a substantiated 09 finding of child abuse or neglect under AS 47.10 or AS 47.14; 10 (4) who was a biological or adoptive parent, guardian, custodian, or 11 Indian custodian of a child at the time the child was the subject of a child-in-need-of- 12 aid petition under AS 47.10; 13 (5) who, in the course of employment with the state, has been 14 terminated from employment or has had an allegation of assaultive, abusive, 15 neglectful, or exploitive behavior or actions substantiated; 16 (6) who, in this state or another jurisdiction, for reasons related to 17 abuse, neglect, undue influence, exploitation, or other reasons that are inconsistent 18 with standards for the protection of public health, safety, or welfare, has had a 19 professional license, certification, or similar professional designation revoked, 20 suspended, or denied, or has had a request for renewal of a professional license, 21 certification, or similar professional designation denied; 22 (7) whom another state or jurisdiction has identified on a civil registry 23 or database substantially similar to the databases identified under this section for 24 reasons substantially similar to the reasons identified in (1) - (6) of this subsection. 25 (b) The information gathered under this section is not a public record under 26 AS 40.25.110 and is not subject to public inspection or copying under AS 40.25.110 - 27 40.25.125. However, information gathered under this section may be released to an 28 entity, an individual who is included in a database, a governmental agency, and a 29 political subdivision of the state in a manner provided under this section and 30 regulations adopted under this chapter. 31 * Sec. 11. AS 47.05.350 is amended to read:
01 Sec. 47.05.350. Use of information; immunity. An entity [OR INDIVIDUAL 02 SERVICE PROVIDER] that obtains information about an employee under a criminal 03 history check under AS 47.05.310 or a civil history check under AS 47.05.325 may 04 use that information only as provided for in regulations adopted by the department 05 under this chapter [AS 47.05.320]. However, if an entity [OR INDIVIDUAL 06 SERVICE PROVIDER] reasonably relies on the information provided under the 07 regulations adopted by the department to deny employment to an individual who was 08 selected for hire as an employee, including during a period of provisional 09 employment, the entity [OR INDIVIDUAL SERVICE PROVIDER] is not liable in an 10 action brought by the individual based on the employment determination resulting 11 from the information. 12 * Sec. 12. AS 47.05 is amended by adding a new section to read: 13 Sec. 47.05.360. Variance request; final decision. (a) An individual or entity 14 subject to the provisions of AS 47.05.310 or 47.05.325 may request a variance from 15 the provisions of AS 47.05.310 or 47.05.325 under procedures established by the 16 department by regulation. The procedures must include the establishment of a variance 17 committee to consider requests for variances. A request for a variance may include a 18 request that the department issue a written explanation of incorrect information 19 contained in the civil history databases identified under AS 45.05.330. 20 (b) An individual or entity that is dissatisfied with a decision by a variance 21 committee may, not more than 30 days after the committee issues the decision, apply 22 to the commissioner for reconsideration of the decision. A determination by the 23 commissioner is a final agency decision for purposes of appeal to the superior court. 24 (c) The department shall disclose information and records pertaining to a child 25 subject to AS 47.10 or AS 47.17 to a variance committee as provided under 26 AS 47.10.093(b). 27 * Sec. 13. AS 47.05.390(6) is amended to read: 28 (6) "entity" means an entity listed in AS 47.32.010(b) or an individual 29 service provider as described in AS 47.05.300 and includes an owner, officer, 30 director, member, or partner of the entity; 31 * Sec. 14. AS 47.10.093(b) is amended to read:
01 (b) A state or municipal agency or employee shall disclose appropriate 02 confidential information regarding a case to 03 (1) a guardian ad litem appointed by the court; 04 (2) a person or an agency requested by the department or the child's 05 legal custodian to provide consultation or services for a child who is subject to the 06 jurisdiction of the court under AS 47.10.010 as necessary to enable the provision of 07 the consultation or services; 08 (3) an out-of-home care provider as necessary to enable the out-of- 09 home care provider to provide appropriate care to the child, to protect the safety of the 10 child, and to protect the safety and property of family members and visitors of the out- 11 of-home care provider; 12 (4) a school official as necessary to enable the school to provide 13 appropriate counseling and support services to a child who is the subject of the case, to 14 protect the safety of the child, and to protect the safety of school students and staff; 15 (5) a governmental agency as necessary to obtain that agency's 16 assistance for the department in its investigation or to obtain physical custody of a 17 child; 18 (6) a law enforcement agency of this state or another jurisdiction as 19 necessary for the protection of any child or for actions by that agency to protect the 20 public safety; 21 (7) a member of a multidisciplinary child protection team created 22 under AS 47.14.300 as necessary for the performance of the member's duties; 23 (8) the state medical examiner under AS 12.65 as necessary for the 24 performance of the duties of the state medical examiner; 25 (9) a person who has made a report of harm as required by 26 AS 47.17.020 to inform the person that the investigation was completed and of action 27 taken to protect the child who was the subject of the report; 28 (10) the child support services agency established in AS 25.27.010 as 29 necessary to establish and collect child support for a child who is a child in need of aid 30 under this chapter; 31 (11) a parent, guardian, or caregiver of a child or an entity responsible
01 for ensuring the safety of children as necessary to protect the safety of a child; 02 (12) a review panel, including a variance committee established 03 under AS 47.05.360, established by the department for the purpose of reviewing the 04 actions taken by the department in a specific case; 05 (13) the University of Alaska under the Alaska higher education 06 savings program for children established under AS 47.14.400, but only to the extent 07 that the information is necessary to support the program and only if the information 08 released is maintained as a confidential record by the University of Alaska; 09 (14) a child placement agency licensed under AS 47.32 as necessary to 10 provide services for a child who is the subject of the case; and 11 (15) a state or municipal agency of this state or another jurisdiction 12 that is responsible for delinquent minors, as may be necessary for the administration of 13 services, protection, rehabilitation, or supervision of a child or for actions by the 14 agency to protect the public safety; however, a court may review an objection made to 15 a disclosure under this paragraph; the person objecting to the disclosure bears the 16 burden of establishing by a preponderance of the evidence that disclosure is not in the 17 child's best interest. 18 * Sec. 15. AS 47.17.040 is amended to read: 19 Sec. 47.17.040. Child protection [CENTRAL] registry; confidentiality. (a) 20 The department shall maintain a child protection [CENTRAL] registry of all 21 investigation reports, including substantiated findings under AS 47.10 or AS 47.17 22 [BUT NOT OF THE REPORTS OF HARM]. 23 (b) Investigation reports and reports of harm filed under this chapter are 24 considered confidential and are not subject to public inspection and copying under 25 AS 40.25.110 and 40.25.120. However, in accordance with department regulations, 26 investigation reports, including substantiated findings under AS 47.10 or AS 47.17, 27 may be used by appropriate governmental agencies with child-protection functions, 28 inside and outside the state, in connection with investigations or judicial proceedings 29 involving child abuse, neglect, or custody and in conjunction with licensing action 30 under AS 47.32 or a similar statute in another state. A person [,] not acting in 31 accordance with department regulations [,] who, with criminal negligence, makes
01 public information contained in confidential reports is guilty of a class B 02 misdemeanor. 03 * Sec. 16. AS 47.17.040 is amended by adding new subsections to read: 04 (c) Before a substantiated finding may be placed on the child protection 05 registry and provided as part of a civil history check under AS 47.05.325, the 06 department shall provide the applicant notice of the finding and an opportunity to 07 appeal the finding. The department shall adopt regulations to implement this section. 08 (d) In this section, "governmental agency" includes a tribe or tribal 09 organization conducting child protection functions and a school district. 10 * Sec. 17. AS 47.32.010(c) is amended to read: 11 (c) The provisions of AS 47.05.300 - 47.05.390, regarding criminal history, 12 criminal history checks, criminal history use standards, and civil history databases [A 13 CENTRALIZED REGISTRY], apply to entities listed in (b) of this section, as 14 provided in AS 47.05.300. 15 * Sec. 18. AS 47.32.070 is amended by adding a new subsection to read: 16 (c) In considering whether to deny an application for or place a condition on a 17 license, the department shall consider the licensing history of the applicant, including 18 any enforcement action under this chapter. 19 * Sec. 19. AS 47.32.090 is amended by adding a new subsection to read: 20 (d) The department may investigate an employee, contractor, or volunteer of a 21 licensed entity and may substantiate that the individual engaged in conduct that would 22 significantly affect the health, safety, or welfare of an individual who is receiving a 23 service from the entity. If the conduct is substantiated against an employee, contractor, 24 or volunteer, the department shall issue a notice of the finding to the person and 25 include the person in the appropriate civil history database identified under 26 AS 47.05.330. Before a substantiated finding against an employee, contractor, or 27 volunteer may be included in a civil history database and provided as part of a check 28 under AS 47.05.325, the department shall provide the applicant notice of the finding 29 and an opportunity to appeal the finding. The department shall adopt regulations to 30 implement this subsection. For the purposes of this subsection, "volunteer" includes an 31 individual placed in a facility for training, educational, or internship purposes.
01 * Sec. 20. AS 47.32.140(d) is amended to read: 02 (d) The department may take one or more of the following enforcement 03 actions under this section: 04 (1) delivery of a warning notice to the licensed entity and to any 05 additional person who was the subject of the investigation or inspection; 06 (2) modification of the term or scope of the entity's existing license, 07 including changing a biennial license to a provisional license or adding a condition to 08 the license; 09 (3) suspension of the entity's operations for a period of time set by the 10 department; 11 (4) suspension of or a ban on the entity's provision of services to 12 individuals not already receiving services from the entity for a period of time set by 13 the department; 14 (5) nonrenewal of the entity's license; 15 (6) revocation of the entity's license or, if the entity is not licensed 16 under this chapter, revocation of the entity's ability to become licensed under this 17 chapter; 18 (7) issuance of an order requiring closure, immediate or otherwise, of 19 the entity regardless of whether the entity is licensed or unlicensed; 20 (8) denial of payments under AS 47.07 for the entity's provision of 21 services to an individual not already receiving services from the entity; 22 (9) assumption of either temporary or permanent management of the 23 entity or pursuit of a court-ordered receiver for the entity; 24 (10) reduction of the number of individuals receiving services from the 25 entity under the license; 26 (11) imposition of a penalty authorized under law; 27 (12) inclusion in a civil history database identified [THE 28 REGISTRY ESTABLISHED] under AS 47.05.330 [; 29 (13) REQUIREMENT THAT THE ENTITY PREPARE AND 30 SUBMIT A PLAN OF CORRECTION]. 31 * Sec. 21. AS 47.32.150(b) is amended to read:
01 (b) Upon receipt of a timely request for a hearing by an entity regarding an 02 enforcement action under AS 47.05.310, AS 47.32.070, or 47.32.140(d)(1), (2), (4), 03 (8), (10), (11), (12), or (f) [(13)], the department shall conduct a hearing in front of an 04 officer appointed by the commissioner. A hearing under this subsection may be 05 conducted on the record, in an informal manner, and may not be conducted under 06 AS 44.62 or AS 44.64. The appointed hearing officer may be a state employee. 07 * Sec. 22. AS 47.32.180 is amended by adding a new subsection to read: 08 (c) Notwithstanding any other provision of law, the department may, upon 09 request, share information with a law enforcement agency that is investigating a crime 10 that is also the subject of a licensing investigation obtained during a current 11 investigation. 12 * Sec. 23. AS 47.32.190 is amended to read: 13 Sec. 47.32.190. Access to information. Notwithstanding any contrary 14 provision of law, the divisions of the department assigned to implement this chapter 15 [PUBLIC HEALTH AND PUBLIC ASSISTANCE FUNCTIONS] shall have access 16 to any information compiled or retained by other divisions of [WITHIN] the 17 department, regardless of the nature of the information or whether the information is 18 considered confidential, in order to assist in administering the provisions of this 19 chapter. 20 * Sec. 24. AS 47.05.310(c), 47.05.310(i), 47.05.390(1), 47.05.390(2), and 47.05.390(3) are 21 repealed. 22 * Sec. 25. The uncodified law of the State of Alaska is amended by adding a new section to 23 read: 24 APPLICABILITY. This Act applies to an application or request for licensure, license 25 renewal, certification, certification renewal, or payment submitted to the Department of 26 Health and Social Services by an entity or individual subject to AS 47.05.300 - 47.05.390, as 27 amended by secs. 3 - 10 of this Act, on or after the effective date of this Act. 28 * Sec. 26. The uncodified law of the State of Alaska is amended by adding a new section to 29 read: 30 REVISOR'S INSTRUCTION. The revisor of statutes is requested to change the 31 (1) heading of art. 3 of AS 47.05 from "Criminal History; Registry" to
01 "Criminal and Civil History"; and 02 (2) catch line of AS 47.32.140 from "Enforcement actions" to "Notice of 03 violation; compliance, and enforcement proceedings." 04 * Sec. 27. This Act takes effect immediately under AS 01.10.070(c).