SB 81: "An Act relating to criminal and civil history requirements and a registry regarding certain licenses, certifications, appeals, and authorizations by the Department of Health and Social Services; and providing for an effective date."
00 SENATE BILL NO. 81 01 "An Act relating to criminal and civil history requirements and a registry regarding 02 certain licenses, certifications, appeals, and authorizations by the Department of Health 03 and Social Services; and providing for an effective date." 04 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA: 05 * Section 1. AS 44.62.330(a)(41) is amended to read: 06 (41) Department of Health and Social Services relating to the civil 07 [CENTRALIZED] registry under AS 47.05.330 - 47.05.390; 08 * Sec. 2. AS 47.05.310(b) is amended to read: 09 (b) The department may not issue or renew a license or a certification for an 10 entity or an individual that is in violation of (a) of this section or that would be in 11 violation based on the information received as part of the application process. 12 * Sec. 3. AS 47.05.310(d) is amended to read: 13 (d) An entity or an individual shall provide to the department a release of 14 information authorization for a criminal history check under this section for each
01 [AN] individual who is not a recipient of services from the entity; who is not in the 02 custody of the department; and, after the entity applies for or has been issued a 03 license, license renewal, certification, or certification renewal by the department, 04 (1) who intends to become an owner of the entity, or an officer, 05 director, partner, member, or principal of the business organization that owns the 06 entity; 07 (2) whom the entity intends to hire or retain as the operator of the 08 entity's business; 09 (3) whom the entity intends to hire or retain as an employee, 10 independent contractor, or unsupervised volunteer of the entity; or 11 (4) who will be present in the entity or at the places of operation of the 12 entity, and would have regular contact with individuals who receive services from the 13 entity, but who is not a family member or visitor of an individual who receives 14 services from the entity. 15 * Sec. 4. AS 47.05.310(e) is amended to read: 16 (e) An individual for whom a release of information authorization has been 17 provided to the department shall submit the individual's fingerprints to the department, 18 with the fee established under AS 12.62.160, for a report of criminal justice 19 information under AS 12.62 and for submission by the Department of Public Safety to 20 the Federal Bureau of Investigation for a national criminal history record check. The 21 Department of Public Safety shall provide the report of criminal justice information 22 and the results of the national criminal history record check to the department for its 23 use in considering an application for a license, license renewal, certification, or 24 certification renewal, or in considering other approval or selection regarding an entity 25 or individual, for compliance with the standards established in this section. [FOR 26 PURPOSES OF OBTAINING ACCESS TO CRIMINAL JUSTICE INFORMATION 27 MAINTAINED BY THE DEPARTMENT OF PUBLIC SAFETY UNDER AS 12.62, 28 THE DEPARTMENT IS A CRIMINAL JUSTICE AGENCY CONDUCTING A 29 CRIMINAL JUSTICE ACTIVITY.] The department may waive the requirement for 30 fingerprint submission if an individual is unable to provide fingerprints due to a 31 medical or physical condition that is documented by a licensed physician.
01 * Sec. 5. AS 47.05.310(f) is amended to read: 02 (f) The provisions of this section do not apply if the department grants an 03 exception from a requirement of (a) - (e) of this section under a regulation adopted by 04 the department, or if the department grants a variance under AS 47.05.360. 05 * Sec. 6. AS 47.05.310(h) is repealed and reenacted to read: 06 (h) For purposes of this section, in place of nonissuance or nonrenewal of a 07 license or certification, an entity or individual service provider that is not required to 08 be licensed or certified by the department or a person wishing to become an entity or 09 individual service provider that is not required to be licensed or certified by the 10 department is ineligible to receive a payment, in whole or in part, from the department 11 to provide for the health, safety, and welfare of persons who are served by the 12 programs administered by the department if the entity, individual service provider, or 13 person is in violation of this section or would be in violation of this section based on 14 information received by the department as part of an application, approval, or 15 selection process. 16 * Sec. 7. AS 47.05.310(i) is amended to read: 17 (i) For purposes of (b) and (c) of this section, in place of nonissuance or 18 nonrenewal of a license or certification, an entity or individual service provider that is 19 not required to be licensed or certified by the department or a person wishing to 20 become an entity or individual service provider that is not required to be licensed or 21 certified by the department is instead ineligible to receive a payment, in whole or in 22 part, from the department to provide for the health, safety, and welfare of persons who 23 are served by the programs administered by the department if the entity, individual 24 service provider, or person 25 (1) is in violation of (a) of this section or would be in violation based 26 on information received by the department as part of an application, approval, or 27 selection process; 28 (2) has been found by a court or agency of this or another jurisdiction 29 to have neglected, abused, or exploited a child or vulnerable adult under AS 47.10, 30 AS 47.24, or AS 47.62 or a substantially similar provision in another jurisdiction, or to 31 have committed medical assistance fraud under AS 47.05.210 or a substantially
01 similar provision in another jurisdiction; or 02 (3) appears on the civil [CENTRALIZED] registry established under 03 AS 47.05.330 or a similar registry of this state or another jurisdiction. 04 * Sec. 8. AS 47.05.310 is amended by adding a new subsection to read: 05 (l) A person is presumed to be acting in good faith and is immune from civil 06 or criminal liability if the person 07 (1) makes a report of medical assistance fraud, abuse, neglect, or 08 exploitation; 09 (2) submits information to the civil registry; or 10 (3) fails to hire or retain an employee or unsupervised volunteer 11 because the employee or unsupervised volunteer is included in the civil 12 [CENTRALIZED] registry. 13 * Sec. 9. AS 47.05 is amended by adding new sections to read: 14 Sec. 47.05.325. Civil history; civil history check; compliance. (a) The 15 department shall establish by regulation standards for issuance or renewal of a license 16 or certification for an individual or for an entity if an individual is applying for a 17 license, license renewal, certification, or certification renewal for the entity and that 18 individual 19 (1) is a biological or adoptive parent, guardian, custodian, or Indian 20 custodian of a child who is or was the subject of a child-in-need-of-aid petition under 21 AS 47.10 and if the individual had custody of the child at the time the child was the 22 subject of a petition; or 23 (2) is the subject of a finding described in AS 47.05.330. 24 (b) If an individual is the subject of a petition or finding described in (a) of 25 this section, or a substantially similar provision in another jurisdiction, the individual 26 may not own an entity or be an officer, director, partner, member, employee, or 27 principal of the business organization that owns an entity. In addition, an entity may 28 not 29 (1) allow that individual to operate the entity; 30 (2) hire or retain that individual at the entity as an employee, 31 independent contractor, or unsupervised volunteer of the entity;
01 (3) allow that individual to reside in the entity, unless that individual 02 receives services from the entity or is in the custody of the state; or 03 (4) allow that individual to be present in the entity if the individual 04 would have regular contact with individuals who receive services from the entity, 05 unless that individual is a family member of or visitor of an individual who receives 06 services from the entity. 07 (c) An entity or an individual shall provide to the department a release of 08 information authorization for a civil history check under this section for each 09 individual who is not a recipient of services from the entity; who is not in the custody 10 of the department; and, after the entity applies for or has been issued a license, license 11 renewal, certification, or certification renewal by the department, 12 (1) who intends to become an owner of the entity, or an officer, 13 director, partner, member, or principal of the business organization that owns the 14 entity; 15 (2) whom the entity intends to hire or retain as the operator of the 16 entity's business; 17 (3) whom the entity intends to hire or retain as an employee, 18 independent contractor, or unsupervised volunteer of the entity; or 19 (4) who will be present in the entity or at the places of operation of the 20 entity, and would have regular contact with individuals who receive services from the 21 entity, but who is not a family member or visitor of an individual who receives 22 services from the entity. 23 (d) For purposes of (a) and (b) of this section, in place of nonissuance or 24 nonrenewal of a license or certification, an entity or individual service provider that is 25 not required to be licensed or certified by the department or a person wishing to 26 become an entity or individual service provider that is not required to be licensed or 27 certified by the department is instead ineligible to receive a payment, in whole or in 28 part, from the department to provide for the health, safety, and welfare of persons who 29 are served by the programs administered by the department if the entity, individual 30 service provider, or person is in violation of this section or would be in violation of 31 this section based on information received by the department as part of an application,
01 approval, or selection process. 02 (e) The department shall by regulation identify other governmental agencies or 03 political subdivisions of the state that can request information that is required under 04 this section for a similar purpose. 05 (f) The provisions of this section do not apply if the department grants an 06 exception from the requirements of (a) or (b) of this section under a regulation adopted 07 by the department, or if the department grants a variance under AS 47.05.360. 08 (g) A person is presumed to be acting in good faith and is immune from civil 09 and criminal liability if the person 10 (1) makes a report of medical assistance fraud, abuse, neglect, or 11 exploitation; 12 (2) submits information to the civil registry; or 13 (3) fails to hire or retain an employee or unsupervised volunteer 14 because the employee or unsupervised volunteer is included in the civil registry. 15 (h) The department shall by regulation establish standards for the 16 consideration and use by the department, an entity, or an individual service provider of 17 the civil history of an individual obtained under this section. 18 * Sec. 10. AS 47.05.330 is repealed and reenacted to read: 19 Sec. 47.05.330. Identification of civil registry; confidentiality. (a) The 20 department shall by regulation identify each registry the department will review to 21 identify and list individuals who have been found to 22 (1) have committed abuse, neglect, undue influence, or exploitation, or 23 to have significantly impacted health, safety, or welfare under AS 47.32 or regulations 24 adopted under AS 47.32; 25 (2) have been sanctioned by the state medical assistance program; 26 (3) have a license revoked or suspended under AS 47.32 or the 27 licensee voluntarily relinquished a license as part of a settlement agreement in lieu of 28 an enforcement action to suspend or revoke a license; 29 (4) have a license denied under AS 47.32 or had a nonrenewal of a 30 current license; 31 (5) have a substantiated finding of child abuse or neglect under
01 AS 47.10 or AS 47.17; 02 (6) be a biological or adoptive parent, guardian, custodian, or Indian 03 custodian who had custody of a child at the time the child was found to be a child in 04 need of aid under AS 47.10; or 05 (7) have been terminated from employment with the department, or 06 received a substantiated allegation, for assaultive, abusive, neglectful, or exploitive 07 behavior or actions; 08 (8) have, in this state or another state or jurisdiction, had a professional 09 license, certification, or similar professional designation revoked, suspended, or 10 denied; or a request to renew a professional license, certification, or similar 11 professional designation denied; 12 (9) have been identified by another state or jurisdiction as a person 13 identified on a civil registry, or substantially similar registry, for reasons substantially 14 similar to those in (1) - (8) of this subsection. 15 (b) The civil registry is not a public record under AS 40.25.110. Information 16 contained in the registry is confidential and is not subject to public inspection and 17 copying under AS 40.25.110 - 40.25.125. Information contained in the civil registry 18 may be released to entities, individual service providers, and governmental agencies or 19 political subdivisions of the state in a manner provided under this section and 20 regulations adopted under this chapter. 21 * Sec. 11. AS 47.05.350 is amended to read: 22 Sec. 47.05.350. Use of information; immunity. An entity or individual 23 service provider that obtains information about an employee under a criminal history 24 check under AS 47.05.310 or a civil history check under AS 47.05.325 may use that 25 information only as provided for in regulations adopted by the department under this 26 chapter [AS 47.05.320]. However, if an entity or individual service provider 27 reasonably relies on the information provided under the regulations adopted by the 28 department to deny employment to an individual who was selected for hire as an 29 employee, including during a period of provisional employment, the entity or 30 individual service provider is not liable in an action brought by the individual based on 31 the employment determination resulting from the information.
01 * Sec. 12. AS 47.05 is amended by adding a new section to read: 02 Sec. 47.05.360. Variance request; final decision. (a) An individual or entity 03 subject to the provisions of AS 47.05.310 or 47.05.325 may request a variance from 04 the provisions of AS 47.05.310 or 47.05.325 under procedures established by the 05 department by regulation. If the request for a variance is denied, the individual or 06 entity may, not later than 30 days after the department's denial, seek reconsideration 07 by the commissioner. A request for a variance may include a request that the 08 department issue a written explanation of incorrect information contained in the civil 09 registry under AS 45.05.330. 10 (b) A determination under (a) of this section is a final agency decision for 11 purposes of appeal to the superior court. 12 * Sec. 13. AS 47.05.390(6) is amended to read: 13 (6) "entity" means an entity listed in AS 47.32.010(b) or an individual 14 service provider listed in AS 47.05.300 and includes an owner, officer, director, 15 member, or partner of the entity; 16 * Sec. 14. AS 47.17.040 is amended to read: 17 Sec. 47.17.040. Child protection [CENTRAL] registry; confidentiality. (a) 18 The department shall maintain a child protection [CENTRAL] registry of all 19 investigation reports, including, substantiated findings under AS 47.10 or AS 47.17 20 [BUT NOT OF THE REPORTS OF HARM]. 21 (b) Investigation reports and reports of harm filed under this chapter are 22 considered confidential and are not subject to public inspection and copying under 23 AS 40.25.110 and 40.25.120. However, in accordance with department regulations, 24 investigation reports, including substantiated findings under AS 47.10 or AS 47.17, 25 may be used by appropriate governmental agencies with child-protection functions, 26 inside and outside the state, in connection with investigations or judicial proceedings 27 involving child abuse, neglect, or custody and in conjunction with licensing action 28 under AS 47.32 or a similar statute in another state. A person [,] not acting in 29 accordance with department regulations [,] who, with criminal negligence, makes 30 public information contained in confidential reports is guilty of a class B 31 misdemeanor.
01 * Sec. 15. AS 47.17.040 is amended by adding new subsections to read: 02 (c) Before a substantiated finding may be placed on the child protection 03 registry under AS 47.17.040 and provided as part of a civil history check under 04 AS 47.05.325, the department must provide the applicant notice of the finding and 05 provide the opportunity for the applicant to appeal the finding. The department shall 06 adopt regulations to implement this section. 07 (d) In this section, 08 (1) "governmental agency" includes tribes or tribal organizations 09 conducting child protection functions; 10 (2) "investigations or judicial proceedings" means any governmental 11 agency, including school districts or educational instructors, that provides services 12 related to the health, safety, and welfare of children. 13 * Sec. 16. AS 47.32.010(c) is amended to read: 14 (c) The provisions of AS 47.05.300 - 47.05.390, regarding criminal history, 15 criminal history checks, criminal history use standards, and a civil [CENTRALIZED] 16 registry, apply to entities listed in (b) of this section, as provided in AS 47.05.300. 17 * Sec. 17. AS 47.32.070 is amended by adding a new subsection to read: 18 (c) In considering whether to deny a license or to place a condition on a 19 license, the department shall consider the licensing history of the applicant, including 20 any enforcement action under this chapter. 21 * Sec. 18. AS 47.32.090 is amended by adding a new subsection to read: 22 (d) The department may investigate an employee, contractor, or unsupervised 23 volunteer of a licensed entity and may substantiate that the individual engaged in 24 conduct that would significantly impact the health, safety, and welfare of a resident in 25 care. If the conduct is substantiated against an employee, contractor, or unsupervised 26 volunteer, the department shall issue a notice of the finding and the person shall be 27 placed on the civil registry under AS 47.05.330. Before a substantiated finding against 28 an employee, contractor, or unsupervised volunteer may be placed on the civil registry 29 and provided as part of a check under AS 47.05.325, the department shall provide the 30 applicant notice of the finding and the ability to appeal the finding. The department 31 shall adopt regulations to implement this section. For the purposes of this section
01 "unsupervised volunteer" includes an individual placed in a facility for training, 02 educational, or internship purposes. 03 * Sec. 19. AS 47.32.150(b) is amended to read: 04 (b) Upon receipt of a timely request for a hearing by an entity regarding an 05 enforcement action under AS 47.05.310, 47.32.070 or 47.32.140(d)(1), (2), (4), (8), 06 (10), (11), (12), or (f) [(13)], the department shall conduct a hearing in front of an 07 officer appointed by the commissioner. A hearing under this subsection may be 08 conducted on the record, in an informal manner, and may not be conducted under 09 AS 44.62 or AS 44.64. The appointed hearing officer may be a state employee. 10 * Sec. 20. AS 47.32.180 is amended by adding a new subsection to read: 11 (c) Notwithstanding any other provision of law, if a law enforcement agency 12 is investigating a crime that is also the subject of a licensing investigation, the 13 department may share all information with the law enforcement agency upon request. 14 * Sec. 21. AS 47.32.190 is amended to read: 15 Sec. 47.32.190. Access to information. Notwithstanding any contrary 16 provision of law, the divisions of the department assigned to implement this chapter 17 [PUBLIC HEALTH AND PUBLIC ASSISTANCE FUNCTIONS] shall have access 18 to any information compiled or retained by other divisions within the department, 19 regardless of the nature of the information or whether the information is considered 20 confidential, in order to assist in administering the provisions of this chapter. 21 * Sec. 22. AS 47.05.310(c), 47.05.390(1), 47.05.390(2), 47.05.390(3); and 22 AS 47.32.140(d)(13) are repealed. 23 * Sec. 23. The uncodified law of the State of Alaska is amended by adding a new section to 24 read: 25 APPLICABILITY. This Act applies whether the criminal or civil conduct identified 26 under AS 47.05.310, 47.05.325, or 47.05.330 occurred before, on, or after the effective date 27 of this Act. 28 * Sec. 24. 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; Registry"; and 02 (2) catch line for AS 47.32.140 from "Enforcement actions" to "Notice; plan 03 of correction; allegation of compliance; enforcement action." 04 * Sec. 25. This Act takes effect immediately under AS 01.10.070(c).