PRINTER'S NO. 3907
No. 2637 Session of 2004
INTRODUCED BY VANCE, FEESE, MANN, NAILOR, ADOLPH, BASTIAN,
BEBKO-JONES, BLAUM, CORRIGAN, CRAHALLA, DAILEY, DALEY,
DeLUCA, DENLINGER, GEIST, GEORGE, GERGELY, GINGRICH, GOOD,
GRUCELA, HENNESSEY, KENNEY, LEDERER, LEH, PAYNE, PICKETT,
PISTELLA, REICHLEY, ROSS, RUBLEY, SAINATO, SCHRODER,
E. Z. TAYLOR, TRUE, WATSON AND YOUNGBLOOD, MAY 24, 2004
REFERRED TO COMMITTEE ON HEALTH AND HUMAN SERVICES, MAY 24, 2004
AN ACT
1 Requiring hospitals to obtain certain information relating to
2 criminal history from prospective employees; providing for
3 grounds for denying employment and for certificate of
4 employability; prescribing penalties; providing for
5 provisional employees for limited periods; imposing certain
6 requirements for current hospital employees; and providing
7 for civil immunity under certain circumstances.
8 TABLE OF CONTENTS
9 Section 1. Short title.
10 Section 2. Declaration of policy.
11 Section 3. Definitions.
12 Section 4. Information relating to prospective hospital
13 personnel.
14 Section 5. Grounds for denying employment.
15 Section 6. Certificate of employability.
16 Section 7. Regulations.
17 Section 8. Violations.
18 Section 9. Conditional employees for limited periods.
1 Section 10. Requirements concerning current hospital
2 employees.
3 Section 11. Civil immunity.
4 Section 12. Other laws.
5 Section 13. Report to General Assembly.
6 Section 14. Applicability.
7 Section 15. Severability.
8 Section 16. Effective date.
9 The General Assembly of the Commonwealth of Pennsylvania
10 hereby enacts as follows:
11 Section 1. Short title.
12 This act shall be known and may be cited as the Hospital
13 Employee Background Check Act.
14 Section 2. Declaration of policy.
15 It is declared the policy of this Commonwealth that the
16 commission of any offense that constitutes serious physical harm
17 or a threat of serious physical harm or conduct which evidences
18 a reckless disregard for the vulnerability of hospital or other
19 care-dependent populations legitimately warrants a lifetime ban
20 on employment in hospitals covered under this act. Further, for
21 hospitals covered under this act, it is the policy of this
22 Commonwealth that the commission of any offenses related to
23 misappropriation or misuse of property or convictions which
24 involved inappropriate or irresponsible behavior legitimately
25 warrants a ban on employment for a period of ten years
26 immediately preceding the date of the report, not including any
27 time spent in incarceration.
28 Section 3. Definitions.
29 The following words and phrases when used in this act shall
30 have the meanings given to them in this section unless the
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1 context clearly indicates otherwise:
2 "Applicant." An individual who submits an application to and
3 is being considered for employment by a hospital.
4 "Bureau." The Bureau of Professional and Occupational
5 Affairs in the Department of State.
6 "Department." The Department of Health of the Commonwealth.
7 "Employee." An individual who has direct contact with
8 patients or unsupervised access to patient rooms and is either
9 employed by a hospital or a contract employee.
10 "Hospital." An entity licensed as a hospital under the act
11 of June 13, 1967 (P.L.31, No.21), known as the Public Welfare
12 Code, or the act of July 19, 1979 (P.L.130, No.48), known as the
13 Health Care Facilities Act.
14 "State Police." The Pennsylvania State Police.
15 Section 4. Information relating to prospective hospital
16 personnel.
17 (a) General rule.--A hospital shall require all applicants
18 to submit with their applications the following information
19 obtained within the preceding one-year period:
20 (1) Pursuant to 18 Pa.C.S. Ch. 91 (relating to criminal
21 history record information), a report of criminal history
22 record information from the State Police or a statement from
23 the State Police that their central repository contains no
24 such information relating to that person. The criminal
25 history record information shall be limited to that which is
26 disseminated pursuant to 18 Pa.C.S. § 9121(b)(2) (relating to
27 general regulations).
28 (2) Where the applicant is not or, for the two years
29 immediately preceding the date of application, has not been a
30 resident of this Commonwealth, a hospital shall require the
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1 applicant to submit with the application for employment a
2 report of Federal criminal history record information
3 pursuant to the Federal Bureau of Investigation's
4 appropriation under the Department of State, Justice, and
5 Commerce, the Judiciary, and Related Agencies Appropriation
6 Act, 1973 Public Law 92-544, 86 Stat. 1109. The department
7 shall be the intermediary for the purposes of this paragraph.
8 For the purposes of this paragraph, the applicant shall
9 submit a full set of fingerprints to the State Police, which
10 shall forward them to the Federal Bureau of Investigation for
11 a national criminal history record check. The information
12 obtained from the criminal history record check shall be used
13 by the department to determine the applicant's eligibility.
14 The determination shall be submitted to the hospital by the
15 applicant prior to commencing employment. The hospital shall
16 ensure confidentiality of the information.
17 (b) Fees.--The State Police may charge the applicant a fee
18 of not more than $10 to conduct the criminal record check
19 required under subsection (a)(1). The State Police may charge a
20 fee of not more than the established charge by the Federal
21 Bureau of Investigation for the criminal history record check
22 required under subsection (a)(2). The State Police shall develop
23 a billing system to allow hospitals to assume responsibility for
24 the fee under this subsection. The State Police shall allow
25 hospitals to establish an account for quarterly payment.
26 Section 5. Grounds for denying employment.
27 (a) Lifetime bans.--In no case shall a hospital hire an
28 applicant required to submit information pursuant to section
29 4(a) or retain an employee required to submit information
30 pursuant to section 14, if the applicant's or employee's
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1 criminal history record information indicates the applicant or
2 employee has been convicted of any of the following offenses:
3 (1) An offense under one of the following provisions of
4 18 Pa.C.S. (relating to crimes and offenses) which is graded
5 as a felony:
6 Chapter 25 (relating to criminal homicide).
7 Section 2702 (relating to aggravated assault), if it is
8 graded as a felony of the first degree.
9 Section 2709.1 (relating to stalking).
10 Section 2713 (relating to neglect of care-dependent
11 person).
12 Section 2901 (relating to kidnapping).
13 Section 3121 (relating to rape).
14 Section 3123 (relating to involuntary deviate sexual
15 intercourse).
16 Section 3124.1 (relating to sexual assault).
17 Section 3125 (relating to aggravated indecent assault).
18 Section 3301 (relating to arson and related offenses).
19 Section 3701 (relating to robbery).
20 Section 4302 (relating to incest).
21 Section 4304 (relating to endangering welfare of
22 children).
23 Section 6312 (relating to sexual abuse of children).
24 Section 6320 (relating to sexual exploitation of
25 children).
26 (2) An offense under one of the following provisions of
27 18 Pa.C.S. which is graded as a misdemeanor:
28 Section 2713 (relating to neglect of care-dependent
29 person).
30 Section 3126 (relating to indecent assault).
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1 Section 4305 (relating to dealing in infant children).
2 (3) A Federal or out-of-State offense similar in nature
3 to any offense listed in paragraph (1) or (2).
4 (b) Ten-year ban.--In no case may a hospital hire an
5 applicant required to submit information pursuant to section
6 4(a) or retain an employee required to submit information
7 pursuant to section 14, if the applicant's or employee's
8 criminal history record information as supplemented under
9 subsection (c), indicates the applicant or employee has been
10 convicted, within ten years immediately preceding the date of
11 the report, not including any time spent in incarceration, of
12 any of the following offenses:
13 (1) An offense graded a felony under the act of April
14 14, 1972 (P.L.233, No.64), known as The Controlled Substance,
15 Drug, Device and Cosmetic Act.
16 (2) An offense under one of the following provisions of
17 18 Pa.C.S. which is graded as a felony:
18 Section 2702, if it is graded as a felony of the second
19 degree.
20 Section 2902 (relating to unlawful restraint).
21 Section 3122.1 (relating to statutory sexual assault).
22 Section 3502 (relating to burglary).
23 Section 3702 (relating to robbery of motor vehicle).
24 Section 4101 (relating to forgery).
25 Section 4952 (relating to intimidation of witnesses or
26 victims).
27 Section 4953 (relating to retaliation against witness,
28 victim or party).
29 Section 5902 (relating to prostitution and related
30 offenses).
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1 Section 5903(c) or (d) (relating to obscene and other
2 sexual materials and performances).
3 (3) An offense under one of the following provisions of
4 18 Pa.C.S. which is graded as a misdemeanor:
5 Section 2504 (relating to involuntary manslaughter).
6 Section 2902.
7 Section 3127 (relating to indecent exposure).
8 Section 4101.
9 Section 4114 (relating to securing execution of documents
10 by deception).
11 Section 4303 (relating to concealing death of child).
12 Section 6301(a)(1) (relating to corruption of minors).
13 (4) A felony offense under 18 Pa.C.S. Ch. 39 (relating
14 to theft and related offenses) or two or more misdemeanors
15 under 18 Pa.C.S. Ch. 39.
16 (5) A Federal or out-of-State offense similar to any
17 offense listed in paragraph (1), (2), (3) or (4).
18 (c) Duty of applicant or employee.--An applicant required to
19 submit information under section 4(a) and an employee required
20 to submit information under section 14 shall provide the
21 hospital with documentation of time spent in incarceration and
22 the date of release from incarceration because of being
23 sentenced for an offense enumerated under subsection (b).
24 (d) Right of review.--An applicant or employee may review,
25 challenge and appeal the completeness or accuracy of that
26 applicant's or employee's criminal history report under 18
27 Pa.C.S. Ch. 91 (relating to criminal history record
28 information). An applicant or employee may challenge the
29 conviction comparison interpretation of the department involving
30 the Federal criminal history record by filing an appeal with the
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1 department in accordance with 2 Pa.C.S. (relating to
2 administrative law and procedure).
3 Section 6. Certificate of employability.
4 (a) General rule.--An individual who would otherwise be
5 precluded from employment by a hospital under section 5(b) may
6 apply for a certificate of employment provided that at least
7 five years, not including any time spent in incarceration, have
8 passed since the individual's conviction of any offense listed
9 under section 5(b). A certificate of employment granted under
10 this section shall be applicable for any hospital subject to
11 this act. The issuance of a certificate shall permit an
12 individual to seek and possibly obtain or retain employment
13 within a hospital subject to this act, but does not guarantee
14 that a hospital will either offer a position of employment to
15 the individual or continue current employment.
16 (b) Hearing.--The bureau shall conduct a hearing on any
17 application filed by an individual who would otherwise be
18 precluded from employment under section 5(b) and determine
19 whether the individual demonstrates rehabilitation. A hearing
20 under this section shall be adjudicated by the bureau's hearing
21 officers and conducted in accordance with the provisions of 2
22 Pa.C.S. (relating to administrative law and procedure). A
23 determination by a hearing officer shall be a final
24 determination of an agency with a right to appeal to
25 Commonwealth Court.
26 (c) Evidence.--The individual applying for a certificate
27 must prove by a preponderance of the evidence the individual's
28 fitness to work in a hospital. The determination shall include,
29 but not be limited to, the following factors:
30 (1) Proof of release from incarceration and the amount
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1 of time that has elapsed since the last conviction.
2 (2) The length and stability of the individual's
3 employment history, particularly in the field in which the
4 individual is seeking work.
5 (3) The circumstances of the offense for which the
6 individual was convicted and the nature of the conviction.
7 (4) If the offense was related to drug use, whether the
8 individual has undergone drug treatment and is maintaining
9 recovery and the length of time the individual has been in
10 recovery.
11 (5) Other evidence of postconviction rehabilitation,
12 including, but not limited to, history of community service,
13 psychological counseling and character references.
14 (6) In addition to evidence submitted by the individual
15 applying for a certificate, the bureau may consider
16 testimony, letters or recommendations relevant to the factors
17 under paragraph (1), (2), (3), (4) or (5), if the testimony,
18 letters or recommendations are provided to the bureau prior
19 to the scheduled hearing date or, at the bureau's option,
20 provided at the scheduled hearing, from:
21 (i) Licensed professionals.
22 (ii) Members of the community.
23 (iii) Public officials.
24 (iv) Former employers.
25 (v) An employer intending to hire the individual.
26 (vi) Others with knowledge of the individual or
27 other evidence relevant to the application.
28 (7) The bureau may consider, if provided to the bureau
29 prior to the scheduled hearing date or, at the bureau's
30 option, provided at the scheduled hearing, any testimony,
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1 letters or recommendations submitted by:
2 (i) The district attorney of the county where any
3 offense listed under section 5(b) occurred.
4 (ii) The victim listed or if the victim is deceased,
5 family members of the victim of any offense under section
6 5(b).
7 (8) At least 30 days prior to a hearing on an
8 application for a certificate, the bureau shall provide
9 notice of the hearing to the district attorney of the county
10 where any offense listed under section 5(b) occurred and
11 shall make all reasonable efforts to provide notice of the
12 hearing to the victim or, if the victim is deceased, family
13 members of the victim of any offense listed under section
14 5(b).
15 (d) Submission.--An individual applying for a certificate
16 shall submit any and all evidence listed under subsection (c)
17 within 30 days of the initial filing of the application for a
18 certificate. Any submission of evidence listed under subsection
19 (c) after this 30-day period may be accepted at the discretion
20 of the hearing officer.
21 (e) Investigations.--The bureau shall establish procedures
22 to conduct investigations of all evidence submitted concerning
23 an application for a certificate. These procedures shall
24 include, but not be limited to:
25 (1) Time periods for a response to an investigator's
26 request for further documentation or evidence from the
27 individual applying for the certificate.
28 (2) Time periods for responses from any notices sent by
29 the hearing officer under subsection (c)(8). Any information
30 submitted after these established time periods shall be
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1 accepted at the discretion of the hearing officer.
2 (f) Determinations.--The bureau shall conduct a hearing on
3 an application for a certificate within 90 days of the completed
4 application being received and issue a decision within 30 days
5 of the hearing unless additional time is requested by the
6 applicant or upon a showing of good cause by the Commonwealth.
7 Determinations by the bureau shall be communicated to the
8 department. The department shall keep a record of all
9 determinations for certificates of employability for five years.
10 (g) Rules and regulations.--The bureau shall establish rules
11 and regulations for the review of the applications for a
12 certificate consistent with the guidelines established under
13 this section. The bureau may conduct hearings pursuant to any
14 rules and regulations already promulgated under the provisions
15 of the act of July 2, 1993 (P.L.345, No.48), entitled "An act
16 empowering the General Counsel of his designee to issue
17 subpoenas for certain licensing board activities; providing for
18 hearing examiners in the Bureau of Professional and Occupational
19 Affairs; providing additional powers to the Commissioner of
20 Professional and Occupational Affairs; and further providing for
21 civil penalties and license suspension." Copies of the rules and
22 regulations shall be made available for distribution to the
23 public.
24 (h) Fees.--No application for a certificate shall be
25 considered by the bureau unless accompanied by a fee established
26 by the bureau. All fees imposed shall be sufficient to cover the
27 costs of implementing this section. Initial fees shall be
28 effective upon publication in the Pennsylvania Bulletin and
29 shall not be subject to the act of July 31, 1968 (P.L.769,
30 No.240), referred to as the Commonwealth Documents Law, the act
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1 of October 15, 1980 (P.L.950, No.164), known as the Commonwealth
2 Attorneys Act, and the act of June 25, 1982 (P.L.633, No.181),
3 known as the Regulatory Review Act. The fees imposed by the
4 bureau shall be paid into the Professional Licensure
5 Augmentation Account established pursuant to the act of July 1,
6 1978 (P.L.700, No.124), known as the Bureau of Professional and
7 Occupational Affairs Fee Act.
8 (i) Notice to applicants.--Notification of the provisions of
9 this section shall be provided by the hospital in a form
10 designated by the bureau to each applicant.
11 Section 7. Regulations.
12 The department shall promulgate the regulations, except
13 regulations concerning the certificate of employability process
14 under section 6, necessary to carry out the provisions of this
15 act.
16 Section 8. Violations.
17 (a) Administrative.--
18 (1) A hospital which fails to comply with the provisions
19 of this act commits a violation of this act and shall be
20 subject to an administrative penalty under paragraph (2).
21 (2) The Commonwealth agency or Commonwealth agencies
22 which license a hospital shall have jurisdiction to determine
23 violations of this act and may issue an order assessing a
24 civil penalty of not more than $10,000. An order under this
25 paragraph shall be subject to 2 Pa.C.S. Ch. 5 Subch. A
26 (relating to practice and procedure of Commonwealth agencies)
27 and Ch. 7 Subch. A (relating to judicial review of
28 Commonwealth agency action).
29 (b) Criminal.--A person who intentionally or willfully fails
30 to comply or obstructs compliance with this act commits a
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1 misdemeanor of the third degree and shall, upon conviction, be
2 sentenced to pay a fine of $2,500 or to imprisonment for not
3 more than one year, or both.
4 Section 9. Conditional employees for limited periods.
5 Notwithstanding the provisions of this act, a hospital may
6 employ applicants on a conditional basis for a single period not
7 to exceed 30 days or, for applicants under section 4(a)(2), a
8 period of 90 days, if all of the following criteria are met:
9 (1) The applicant has applied for the information
10 required under section 4 and the applicant provides a copy of
11 the appropriate completed request forms to the hospital.
12 (2) The hospital has no knowledge of information
13 pertaining to the applicant which would disqualify the
14 applicant from employment pursuant to section 5, subject to
15 18 Pa.C.S. § 4911 (relating to tampering with public records
16 or information).
17 (3) The applicant swears or affirms in writing that the
18 applicant is not disqualified from employment under section
19 5.
20 (4) If the information obtained under section 4 reveals
21 that the applicant is disqualified from employment under
22 section 5, the applicant shall be immediately dismissed by
23 the hospital.
24 Section 10. Requirements concerning current hospital employees.
25 The following shall apply:
26 (1) If the information obtained under section 4 reveals
27 that an individual currently employed at a hospital is
28 disqualified from employment under section 5(b) and the
29 individual seeks to apply for a certificate of employability
30 pursuant to section 6, the individual shall either, at the
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1 option of the hospital, be placed on suspension without pay
2 or continue employment under supervision with no unsupervised
3 direct contact with patients until such time as a certificate
4 is issued or an appeal is filed pursuant to paragraph (4).
5 (2) If an individual currently employed at a hospital
6 fails to file an application for a certificate within 30 days
7 of being suspended or placed under supervision by a hospital
8 receiving the information under section 4, the individual
9 shall be immediately dismissed by the hospital.
10 (3) Except as provided in paragraph (4), if an
11 application is denied pursuant to section 6, the individual
12 on suspension or supervised employment shall be immediately
13 dismissed by the hospital.
14 (4) If an appeal is filed by either party with the
15 Commonwealth Court from a decision under section 6(f),
16 concerning an individual on suspension or supervised
17 employment, then the hospital shall have the option to
18 continue the suspension period or supervised employment under
19 paragraph (1) or to terminate the individual.
20 (5) At no time may an individual be dismissed from
21 employment solely for offenses resulting in disqualification
22 from employment under section 5(b) while an application is
23 pending and before a final determination of that application
24 is made pursuant to section 6(f).
25 (6) Within 30 days of the effective date of this
26 section, each hospital shall provide copies of section 6 and
27 this section to all current hospital employees.
28 Section 11. Civil immunity.
29 A hospital may not be held civilly liable for any action
30 directly related to good faith compliance with this act.
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1 Section 12. Other laws.
2 This act does not supersede background check-employment
3 restrictions imposed by another law if the other law is deemed
4 applicable to a hospital or portion of a hospital.
5 Section 13. Report to General Assembly.
6 No later than one year following the effective date of this
7 section, the State Police and the department shall report to the
8 Public Health and Welfare Committee of the Senate and the Health
9 and Human Services Committee of the House of Representatives
10 with their findings and recommendations regarding the
11 implementation of this act.
12 Section 14. Applicability.
13 This act shall apply as follows:
14 (1) (i) An individual who, on the effective date of
15 this section, is a current employee of a hospital shall,
16 within 12 months of the effective date of this section,
17 comply with section 4 as a condition of continued
18 employment.
19 (ii) Criminal history record information which meets
20 the requirements of section 4 was obtained within the
21 one-year period preceding the effective date of this
22 section and was submitted to a hospital prior to the
23 effective date of this section shall be deemed current
24 for the purposes of subparagraph (i) upon review for
25 compliance with section 5 by the appropriate entity.
26 (2) An employee who has obtained the information
27 required under section 4 may transfer to another hospital
28 established and supervised by the same owner and shall not be
29 required to obtain additional reports before making the
30 transfer.
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1 Section 15. Severability.
2 The provisions of this act are severable. If any provision of
3 this act or its application to any person or circumstance is
4 held invalid, the invalidity shall not affect other provisions
5 or applications of this act which can be given effect without
6 the invalid provision or application.
7 Section 16. Effective date.
8 This act shall take effect in 60 days.
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