PRINTER'S NO. 216
No. 224 Session of 2005
INTRODUCED BY VANCE, M. WHITE, BOSCOLA, COSTA, KITCHEN, LOGAN, O'PAKE, REGOLA, STACK, STOUT AND C. WILLIAMS, FEBRUARY 8, 2005
REFERRED TO PUBLIC HEALTH AND WELFARE, FEBRUARY 8, 2005
AN ACT 1 Requiring hospitals to obtain certain information relating to 2 criminal history from prospective employees; providing for 3 grounds for denying employment; prescribing penalties; 4 providing for provisional employees for limited periods; 5 imposing certain requirements for current hospital employees; 6 and providing for civil immunity under certain circumstances. 7 TABLE OF CONTENTS 8 Section 1. Short title. 9 Section 2. Declaration of policy. 10 Section 3. Definitions. 11 Section 4. Information relating to prospective hospital 12 personnel. 13 Section 5. Grounds for denying employment. 14 Section 6. Regulations. 15 Section 7. Violations. 16 Section 8. Conditional employees for limited periods. 17 Section 9. Requirements concerning current hospital 18 employees. 19 Section 10. Civil immunity.
1 Section 11. Other laws. 2 Section 12. Report to General Assembly. 3 Section 13. Applicability. 4 Section 14. Severability. 5 Section 15. Effective date. 6 The General Assembly of the Commonwealth of Pennsylvania 7 hereby enacts as follows: 8 Section 1. Short title. 9 This act shall be known and may be cited as the Hospital 10 Employee Background Check Act. 11 Section 2. Declaration of policy. 12 It is declared the policy of this Commonwealth that the 13 commission of any offense that constitutes serious physical harm 14 or a threat of serious physical harm or conduct which evidences 15 a reckless disregard for the vulnerability of hospital or other 16 care-dependent populations legitimately warrants a lifetime ban 17 on employment in hospitals covered under this act. Further, for 18 hospitals covered under this act, it is the policy of this 19 Commonwealth that the commission of any offenses related to 20 misappropriation or misuse of property or convictions which 21 involved inappropriate or irresponsible behavior legitimately 22 warrants a ban on employment for a period of ten years 23 immediately preceding the date of the report, not including any 24 time spent in incarceration. 25 Section 3. Definitions. 26 The following words and phrases when used in this act shall 27 have the meanings given to them in this section unless the 28 context clearly indicates otherwise: 29 "Applicant." An individual who submits an application to and 30 is being considered for employment by a hospital. 20050S0224B0216 - 2 -
1 "Department." The Department of Health of the Commonwealth. 2 "Employee." An individual who has direct contact with 3 patients or unsupervised access to patient rooms and is either 4 employed by a hospital or a contract employee, acts in a 5 managerial capacity or is a student or intern. 6 "Hospital." An entity licensed as a hospital under the act 7 of June 13, 1967 (P.L.31, No.21), known as the Public Welfare 8 Code, or the act of July 19, 1979 (P.L.130, No.48), known as the 9 Health Care Facilities Act. 10 "State Police." The Pennsylvania State Police. 11 Section 4. Information relating to prospective hospital 12 personnel. 13 (a) General rule.--A hospital shall require all applicants 14 to submit with their applications the following information 15 obtained within the preceding one-year period: 16 (1) Pursuant to 18 Pa.C.S. Ch. 91 (relating to criminal 17 history record information), a report of criminal history 18 record information from the State Police or a statement from 19 the State Police that their central repository contains no 20 such information relating to that person. The criminal 21 history record information shall be limited to that which is 22 disseminated pursuant to 18 Pa.C.S. § 9121(b)(2) (relating to 23 general regulations). 24 (2) Where the applicant is not or, for the two years 25 immediately preceding the date of application, has not been a 26 resident of this Commonwealth, a hospital shall require the 27 applicant to submit with the application for employment a 28 report of Federal criminal history record information 29 pursuant to the Federal Bureau of Investigation's 30 appropriation under the Department of State, Justice, and 20050S0224B0216 - 3 -
1 Commerce, the Judiciary, and Related Agencies Appropriation 2 Act, 1973 Public Law 92-544, 86 Stat. 1109. The department 3 shall be the intermediary for the purposes of this paragraph. 4 For the purposes of this paragraph, the applicant shall 5 submit a full set of fingerprints to the State Police, which 6 shall forward them to the Federal Bureau of Investigation for 7 a national criminal history record check. The information 8 obtained from the criminal history record check shall be used 9 by the department to determine the applicant's eligibility. 10 The determination shall be submitted to the hospital by the 11 applicant prior to commencing employment. The hospital shall 12 ensure confidentiality of the information. 13 (b) Fees.--The State Police may charge the applicant a fee 14 of not more than $10 to conduct the criminal record check 15 required under subsection (a)(1). The State Police may charge a 16 fee of not more than the established charge by the Federal 17 Bureau of Investigation for the criminal history record check 18 required under subsection (a)(2). The State Police shall develop 19 a billing system to allow hospitals to assume responsibility for 20 the fee under this subsection. The State Police shall allow 21 hospitals to establish an account for quarterly payment. 22 Section 5. Grounds for denying employment. 23 (a) Lifetime bans.--In no case shall a hospital hire an 24 applicant required to submit information pursuant to section 25 4(a) (relating to information relating to prospective hospital 26 personnel) or retain an employee required to submit information 27 pursuant to section 13 (relating to applicability), if the 28 applicant's or employee's criminal history record information 29 indicates the applicant or employee has been convicted of any of 30 the following offenses: 20050S0224B0216 - 4 -
1 (1) An offense under one of the following provisions of 2 18 Pa.C.S. (relating to crimes and offenses) which is graded 3 as a felony: 4 Chapter 25 (relating to criminal homicide). 5 Section 2702 (relating to aggravated assault), if it is 6 graded as a felony of the first degree. 7 Section 2709.1 (relating to stalking). 8 Section 2713 (relating to neglect of care-dependent 9 person). 10 Section 2901 (relating to kidnapping). 11 Section 3121 (relating to rape). 12 Section 3123 (relating to involuntary deviate sexual 13 intercourse). 14 Section 3124.1 (relating to sexual assault). 15 Section 3125 (relating to aggravated indecent assault). 16 Section 3301 (relating to arson and related offenses). 17 Section 3701 (relating to robbery). 18 Section 4302 (relating to incest). 19 Section 4304 (relating to endangering welfare of 20 children). 21 Section 6312 (relating to sexual abuse of children). 22 Section 6320 (relating to sexual exploitation of 23 children). 24 (2) An offense under one of the following provisions of 25 18 Pa.C.S. which is graded as a misdemeanor: 26 Section 2713 (relating to neglect of care-dependent 27 person). 28 Section 3126 (relating to indecent assault). 29 Section 4305 (relating to dealing in infant children). 30 (3) A Federal or out-of-State offense similar in nature 20050S0224B0216 - 5 -
1 to any offense listed in paragraph (1) or (2). 2 (b) Ten-year ban.--In no case may a hospital hire an 3 applicant required to submit information pursuant to section 4 4(a) or retain an employee required to submit information 5 pursuant to section 13 if the applicant's or employee's criminal 6 history record information as supplemented under subsection (c) 7 indicates the applicant or employee has been convicted, within 8 ten years immediately preceding the date of the report, not 9 including any time spent in incarceration, of any of the 10 following offenses: 11 (1) An offense graded a felony under the act of April 12 14, 1972 (P.L.233, No.64), known as The Controlled Substance, 13 Drug, Device and Cosmetic Act. 14 (2) An offense under one of the following provisions of 15 18 Pa.C.S. which is graded as a felony: 16 Section 2702, if it is graded as a felony of the second 17 degree. 18 Section 2902 (relating to unlawful restraint). 19 Section 3122.1 (relating to statutory sexual assault). 20 Section 3502 (relating to burglary). 21 Section 3702 (relating to robbery of motor vehicle). 22 Section 4101 (relating to forgery). 23 Section 4952 (relating to intimidation of witnesses or 24 victims). 25 Section 4953 (relating to retaliation against witness, 26 victim or party). 27 Section 5902 (relating to prostitution and related 28 offenses). 29 Section 5903(c) or (d) (relating to obscene and other 30 sexual materials and performances). 20050S0224B0216 - 6 -
1 (3) An offense under one of the following provisions of 2 18 Pa.C.S. which is graded as a misdemeanor: 3 Section 2504 (relating to involuntary manslaughter). 4 Section 2902. 5 Section 3127 (relating to indecent exposure). 6 Section 4101. 7 Section 4114 (relating to securing execution of documents 8 by deception). 9 Section 4303 (relating to concealing death of child). 10 Section 6301(a)(1) (relating to corruption of minors). 11 (4) A felony offense under 18 Pa.C.S. Ch. 39 (relating 12 to theft and related offenses) or two or more misdemeanors 13 under 18 Pa.C.S. Ch. 39. 14 (5) A Federal or out-of-State offense similar to any 15 offense listed in paragraph (1), (2), (3) or (4). 16 (c) Duty of applicant or employee.--An applicant or employee 17 required to submit information under section 4(a) or 13 and 18 sentenced for an offense enumerated under subsection (b) shall 19 provide the hospital with documentation of time spent in 20 incarceration and the date of release from incarceration. 21 (d) Right of review.--An applicant or employee may review, 22 challenge and appeal the completeness or accuracy of that 23 applicant's or employee's criminal history report under 18 24 Pa.C.S. Ch. 91 (relating to criminal history record 25 information). An applicant or employee may challenge the 26 decision of the department involving the Federal criminal 27 history record by filing an appeal with the department in 28 accordance with 2 Pa.C.S. (relating to administrative law and 29 procedure). 30 Section 6. Regulations. 20050S0224B0216 - 7 -
1 The department shall promulgate the regulations necessary to 2 carry out the provisions of this act. 3 Section 7. Violations. 4 (a) Administrative.-- 5 (1) A hospital which fails to comply with the provisions 6 of this act commits a violation of this act and shall be 7 subject to an administrative penalty under paragraph (2). 8 (2) The Commonwealth agency or Commonwealth agencies 9 which license a hospital shall have jurisdiction to determine 10 violations of this act and may issue an order assessing a 11 civil penalty of not more than $10,000. An order under this 12 paragraph shall be subject to 2 Pa.C.S. Chs. 5 Subch. A 13 (relating to practice and procedure of Commonwealth agencies) 14 and 7 Subch. A (relating to judicial review of Commonwealth 15 agency action). 16 (b) Criminal.--A person who intentionally or willfully fails 17 to comply or obstructs compliance with this act commits a 18 misdemeanor of the third degree and shall, upon conviction, be 19 sentenced to pay a fine of $2,500 or to imprisonment for not 20 more than one year, or both. 21 Section 8. Conditional employees for limited periods. 22 Notwithstanding the provisions of this act, a hospital may 23 employ applicants on a conditional basis for a single period not 24 to exceed 30 days or, for applicants under section 4(a)(2) 25 (relating to information relating to prospective hospital 26 personnel), a period of 90 days, if all of the following 27 criteria are met: 28 (1) The applicant has applied for the information 29 required under section 4 and the applicant provides a copy of 30 the appropriate completed request forms to the hospital. 20050S0224B0216 - 8 -
1 (2) The hospital has no knowledge of information 2 pertaining to the applicant which would disqualify the 3 applicant from employment pursuant to section 5 (relating to 4 grounds for denying employment), subject to 18 Pa.C.S. § 4911 5 (relating to tampering with public records or information). 6 (3) The applicant swears or affirms in writing that the 7 applicant is not disqualified from employment under section 8 5. 9 (4) If the information obtained under section 4 reveals 10 that the applicant is disqualified from employment under 11 section 5, the applicant shall be immediately dismissed by 12 the hospital. 13 Section 9. Requirements concerning current hospital employees. 14 The following shall apply: 15 (1) If the information obtained under section 4 16 (relating to information relating to prospective hospital 17 personnel) reveals that an individual currently employed at a 18 hospital is disqualified from employment under section 5(b) 19 (relating to grounds for denying employment), the individual 20 shall either, at the option of the hospital, be placed on 21 suspension without pay or continue employment under 22 supervision with no unsupervised direct contact with 23 patients. 24 (2) Within 30 days of the effective date of this 25 section, each hospital shall provide copies of this section 26 to all current hospital employees. 27 Section 10. Civil immunity. 28 A hospital may not be held civilly liable for any action 29 directly related to good faith compliance with this act. 30 Section 11. Other laws. 20050S0224B0216 - 9 -
1 This act does not supersede background check-employment 2 restrictions imposed by another law if the other law is deemed 3 applicable to a hospital or portion of a hospital. 4 Section 12. Report to General Assembly. 5 No later than one year following the effective date of this 6 section, the State Police and the department shall report to the 7 Public Health and Welfare Committee of the Senate and the Health 8 and Human Services Committee of the House of Representatives 9 with their findings and recommendations regarding the 10 implementation of this act. 11 Section 13. Applicability. 12 This act shall apply as follows: 13 (1) (i) An individual who, on the effective date of 14 this section, is a current employee of a hospital shall, 15 within 12 months of the effective date of this section, 16 comply with section 4 as a condition of continued 17 employment. 18 (ii) Criminal history record information which meets 19 the requirements of section 4 was obtained within the 20 four-year period preceding the effective date of this 21 section and was submitted to a hospital prior to the 22 effective date of this section shall be deemed current 23 for the purposes of subparagraph (i) upon review for 24 compliance with section 5 by the appropriate entity. 25 (2) An employee who has obtained the information 26 required under section 4 may transfer to another hospital 27 established and supervised by the same owner and shall not be 28 required to obtain additional reports before making the 29 transfer. 30 Section 14. Severability. 20050S0224B0216 - 10 -
1 The provisions of this act are severable. If any provision of 2 this act or its application to any person or circumstance is 3 held invalid, the invalidity shall not affect other provisions 4 or applications of this act which can be given effect without 5 the invalid provision or application. 6 Section 15. Effective date. 7 This act shall take effect in 60 days. A26L35DMS/20050S0224B0216 - 11 -