2023 Hawaii Revised Statutes › Title 19. Health › 321. Department of Health › 321-171.5 Employees of the department of health, its providers and subcontractors; background checks.

§321-171.5 Employees of the department of health, its providers and subcontractors; background checks.
(a) The department of health shall develop procedures for obtaining verifiable background check information regarding persons who are seeking employment, or seeking to serve as providers or subcontractors, in positions that place them in direct contact with adult, child, or youth clients when providing non-witnessed direct mental health or health care services. These procedures shall include but not be limited to background checks as defined in section 321-15.2.
(b) Except as otherwise specified, any person who seeks employment with the department of health, or who is employed or seeks employment with a provider or subcontractor in a position that necessitates non-witnessed direct contact with clients when providing non-witnessed direct mental health or health care services, shall:
(1) Be subject to background checks in accordance with section 321-15.2;
(2) Authorize the disclosure to the department or its designee of background check information; and
(3) Provide to the department of health or its designee written consent for the department or its designee to obtain background check information for verification.
Information obtained pursuant to subsection (a) and this subsection shall be used exclusively by the department of health for purposes of determining whether a person is suitable for working in a position that necessitates non-witnessed direct contact with clients when providing non-witnessed direct mental health or health care services. All such decisions shall be subject to federal laws and regulations currently or hereafter in effect.
(c) The department of health may refuse to employ or may terminate the employment of any employee or applicant for employment if:
(1) The person refuses to authorize the department or its designee to conduct a background check;
(2) The person refuses or fails to submit to the department or its designee information required to conduct a background check;
(3) The person has been convicted of an offense for which incarceration is a sentencing option; or
(4) The department of health finds by reason of the nature and circumstances of the background check information that the person poses a risk to the health, safety, or well-being of clients receiving non-witnessed direct mental health or health care services. Such refusal or termination may occur only after appropriate investigation, notification of results and planned action, and opportunity to meet and rebut the finding, all of which need not be conducted in accordance with chapter 91. Nothing in this subsection shall abrogate any applicable appeal rights under chapter 76 or 89.
(d) This section shall not be used by the department of health or its designee to secure background checks on persons who have been employed continuously on a salaried basis prior to July 1, 2015.
(e) Nothing in this section shall prohibit background checks on employees of all providers and subcontractors.
(f) The department or its designee, in obtaining and relying upon the background check information, shall be presumed to be acting in good faith and shall be immune from civil liability for taking or recommending action based upon the background check information. The presumption of good faith may be rebutted upon a showing of proof by a preponderance of the evidence that the department or its designee relied upon information or opinion that it knew was false or misleading or that such reliance was not reasonable.
(g) For purposes of this section:
"Provider" means any organization or individual that intends to enter into a contract with or is currently contracted by the department of health to provide direct mental health or health care services to the department's eligible clients.
"Subcontractor" means any organization or individual that enters into a contract or agreement with a provider to provide direct mental health or health care services to the department's eligible clients.
(h) Notwithstanding any other law to the contrary, the department of health shall be exempt from section 831-3.1 for purposes of this section and need not conduct investigations, notifications, or hearings under this section in accordance with chapter 91. [L 2003, c 95, §5; am L 2004, c 79, §1; am L 2012, c 285, §3; am L 2015, c 190, §2]