THE GENERAL ASSEMBLY OF PENNSYLVANIA

SENATE BILL

INTRODUCED BY VANCE, MENSCH, ERICKSON, BROWNE, BOSCOLA, FONTANA, RAFFERTY, ORIE, PICCOLA, WAUGH, SOLOBAY, BREWSTER AND WOZNIAK, FEBRUARY 25, 2011

REFERRED TO PUBLIC HEALTH AND WELFARE, FEBRUARY 25, 2011  

AN ACT

Requiring hospitals to obtain certain information relating to

criminal history from prospective employees; providing for

grounds for denying employment; prescribing penalties;

providing for provisional employment for limited periods;

imposing certain requirements for hospital employees; and

providing for civil immunity under certain circumstances.

TABLE OF CONTENTS

Section 1.  Short title.

Section 2.  Declaration of policy.

Section 3.  Definitions.

Section 4.  Information relating to prospective hospital

personnel.

Section 5.  Grounds for denying employment.

Section 6.  Certificate of employability.

Section 7.  Regulations.

Section 8.  Violations.

Section 9.  Provisional employment for limited periods.

Section 10.  Requirements concerning hospital employees.

Section 11.  Civil immunity.

Section 12.  Other laws.

Section 13.  Report to General Assembly.

Section 14.  Severability.

Section 15.  Applicability.

Section 16.  Effective date.

The General Assembly of the Commonwealth of Pennsylvania

hereby enacts as follows:

Section 1.  Short title.

This act shall be known and may be cited as the Hospital

Employee Background Check Act.

Section 2.  Declaration of policy.

It is declared the policy of this Commonwealth that the

conviction of any offense that constitutes serious physical harm

or a threat of serious physical harm or conduct which evidences

a reckless disregard for the vulnerability of hospital or other

care-dependent populations legitimately warrants a lifetime ban

on employment in hospitals covered under this act. Further, for

hospitals covered under this act, it is the policy of this

Commonwealth that the conviction of any offenses related to

misappropriation or misuse of property or convictions which

involved inappropriate or irresponsible behavior may

legitimately warrant a ban on employment.

Section 3.  Definitions.

The following words and phrases when used in this act shall

have the meanings given to them in this section unless the

context clearly indicates otherwise:

"Applicant."  An individual being considered for employment

or engagement by a hospital as an employee.

"Department."  The Department of Health of the Commonwealth.

"Employee."  An individual who has direct contact with

patients or unsupervised access to patient rooms and is either

employed by a hospital or a contract employee, acts in a

managerial capacity or is a student or intern.

"Hospital."  An entity licensed as a hospital under the act

of June 13, 1967 (P.L.31, No.21), known as the Public Welfare

Code, or the act of July 19, 1979 (P.L.130, No.48), known as the

Health Care Facilities Act.

"State Police."  The Pennsylvania State Police.

Section 4.  Information relating to prospective hospital

personnel.

(a)  General rule.--Prior to hiring or engaging an applicant,

a hospital shall require the applicant to submit the following

information obtained within the preceding one-year period:

(1)  Pursuant to 18 Pa.C.S. Ch. 91 (relating to criminal

history record information), a report of criminal history

record information from the State Police or a statement from

the State Police that their central repository contains no

such information relating to the applicant. The criminal

history record information shall be limited to that which is

disseminated pursuant to 18 Pa.C.S. § 9121(b)(2) (relating to

general regulations).

(2)  Where the applicant is not or, for the two years

immediately preceding the date of application, has not been a

resident of this Commonwealth, a report of Federal criminal

history record information pursuant to the Federal Bureau of

Investigation's appropriation under the Departments of State,

Justice, and Commerce, the Judiciary, and Related Agencies

Appropriation Act, (1973 Public Law 92-544, 86 Stat. 1109).

The department shall be the intermediary for the purposes of

this paragraph. For the purposes of this paragraph, the

applicant shall submit a full set of fingerprints to the

State Police, which shall forward them to the Federal Bureau

of Investigation for a national criminal history record

check. The information obtained from the criminal history

record check shall be used by the department to determine the

applicant's eligibility. The determination shall be submitted

to the hospital by the applicant prior to commencing

employment. The hospital shall ensure confidentiality of the

information.

(b)  Additional information.--The department or the State

Police may require the applicant to submit additional

information from a court or other authority if the criminal

history record does not provide the disposition of a criminal

charge or the information needed to compare a Federal or out-of-

State criminal offense to Pennsylvania criminal offenses.

(c)  Fees.--The State Police may charge the applicant a fee

of not more than $10 to conduct the criminal record check

required under subsection (a)(1). The State Police may charge a

fee of not more than the established charge by the Federal

Bureau of Investigation for the criminal history record check

required under subsection (a)(2). The State Police shall develop

a billing system to allow hospitals to assume responsibility for

the fee under this subsection. The State Police shall allow

hospitals to establish an account for quarterly payment.

Section 5.  Grounds for denying employment.

(a)  Lifetime bans.--In no case shall a hospital hire or

engage an applicant required to submit information pursuant to

section 4(a) or retain an employee required to submit

information pursuant to section 13, if the applicant's or

employee's criminal history record information indicates the

applicant or employee has been convicted of any of the following

offenses:

(1)  An offense under one of the following provisions of

18 Pa.C.S. (relating to crimes and offenses) which is graded

as a felony:

Chapter 25 (relating to criminal homicide).

Section 2713 (relating to neglect of care-dependent

person).

Section 2901 (relating to kidnapping).

Section 3121 (relating to rape).

Section 3123 (relating to involuntary deviate sexual

intercourse).

Section 3124.1 (relating to sexual assault).

Section 3124.2 (relating to institutional sexual

assault).

Section 3125 (relating to aggravated indecent

assault).

Section 3301 (relating to arson and related

offenses).

Section 4302 (relating to incest).

Section 6312 (relating to sexual abuse of children).

(2)  An offense under one of the following provisions of

18 Pa.C.S. which is graded as a misdemeanor:

Section 4305 (relating to dealing in infant

children).

(3)  A Federal or out-of-State offense similar in nature

to any offense listed in paragraph (1) or (2).

(b)  Lifetime bans with possibility of certificate of

employability.--Except as otherwise provided, a hospital shall

not hire or engage an applicant required to submit information

under this act or retain an employee required to submit

information under this act if the applicant's or employee's

criminal history record information indicates the applicant or

employee has been convicted of any of the following offenses:

(1)  An offense under one of the following provisions of

18 Pa.C.S. which is graded as a felony:

Section 2702 (relating to aggravated assault).

Section 2709.1 (relating to stalking).

Section 3126 (relating to indecent assault).

Section 3701 (relating to robbery).

Section 4304 (relating to endangering welfare of

children).

(2)  An offense under one of the following provisions of

18 Pa.C.S. which is graded as a misdemeanor:

Section 2713 (relating to neglect of care-dependent

person).

Section 3126 (relating to indecent assault).

(c)  Ten-year ban.--Except as otherwise provided herein, a

hospital shall not hire or engage an applicant required to

submit information pursuant to section 4(a) or retain an

employee required to submit information pursuant to section 13

if the applicant's or employee's criminal history record

information as supplemented under subsection (d) indicates the

applicant or employee has been convicted, within ten years

immediately preceding the date of the report, not including any

time spent in incarceration, of any of the following offenses:

(1)  An offense graded a felony under the act of April

14, 1972 (P.L.233, No.64), known as The Controlled Substance,

Drug, Device and Cosmetic Act.

(2)  An offense under one of the following provisions of

18 Pa.C.S. which is graded as a felony:

Section 2902 (relating to unlawful restraint).

Section 3122.1 (relating to statutory sexual

assault).

Section 3502 (relating to burglary).

Section 3702 (relating to robbery of motor vehicle).

Section 4101 (relating to forgery).

Section 4952 (relating to intimidation of witnesses

or victims).

Section 4953 (relating to retaliation against

witness, victim or party).

Section 5902 (relating to prostitution and related

offenses).

(3)  An offense under one of the following provisions of

18 Pa.C.S. which is graded as a misdemeanor:

Chapter 25.

Section 2902.

Section 3127 (relating to indecent exposure).

Section 4101.

Section 4114 (relating to securing execution of

documents by deception).

Section 4303 (relating to concealing death of child).

Section 6301(a)(1) (relating to corruption of

minors).

(4)  A felony offense under 18 Pa.C.S. Ch. 39 (relating

to theft and related offenses) or two or more misdemeanors

under 18 Pa.C.S. Ch. 39.

(5)  A Federal or out-of-State offense similar to any

offense listed in paragraph (1), (2), (3) or (4).

(d)  Duty of applicant or employee.--An applicant or employee

required to submit information under section 4(a) or 13 and

sentenced for an offense enumerated under subsection (c) shall

provide the hospital with documentation of time spent in

incarceration and the date of release from incarceration.

(e)  Right of review.--An applicant or employee may review,

challenge and appeal the completeness or accuracy of that

applicant's or employee's criminal history report under 18

Pa.C.S. Ch. 91 (relating to criminal history record

information). An applicant or employee may challenge the

decision of the department involving the Federal criminal

history record by filing an appeal with the department in

accordance with 2 Pa.C.S. (relating to administrative law and

procedure). An applicant or employee provisionally employed may

continue to be employed pending the ultimate resolution of such

a challenge and any subsequent appeal, unless a supersedeas or

temporary injunction is entered prohibiting the continued

employment of the individual.

Section 6.  Certificate of employability.

(a)  General rule.--

(1)  An individual who would otherwise be precluded from

employment by a hospital under section 5(c) may petition for

a certificate of employability provided that at least ten

years, not including any time spent in incarceration, have

passed since the individual's conviction of any offense

listed under section 5(c).

(2)  An individual who would otherwise be precluded from

employment by a hospital under section 5(d) may petition for

a certificate of employability, provided that at least five

years, not including time spent in incarceration, have passed

since the individual's conviction of any offense listed under

section 5(c).

(3)  A certificate of employability granted under this

section shall be applicable to any hospital subject to this

act. The issuance of a certificate of employability shall

permit an individual to seek and possibly obtain employment

subject to this act, but in no way guarantees that a hospital

will offer a position to the individual.

(b)  Petition and hearing.--An individual seeking a

certificate of employability shall file a petition with the

department. A hearing officer designated by the department shall

conduct a hearing on the petition in accordance with the

provisions of 2 Pa.C.S. (relating to administrative law and

procedure). The petition shall indicate whether the individual

requests a face-to-face hearing, which shall be conducted at the

department's offices in Harrisburg. If not specified, the

hearing may be conducted by telephone or other means as

determined by the department.

(c)  Determination.--

(1)  The department shall make a written determination as

to whether the petitioning individual will receive a

certificate of employability. The department must apply the

criteria of this subsection in reaching its decision.

(2)  A determination by the department shall be a final

agency determination with a right to appeal to the

Commonwealth Court.

(d)  Evidence.--The individual petitioning for a certificate

of employability has the burden of proving by a preponderance of

the evidence the individual's fitness to work with care-

dependent individuals. The department's determination about the

individual's fitness and whether it should issue a certificate

of employability shall include the following factors:

(1)  The amount of time that has elapsed since the

individual's last conviction of an offense listed in section

5 and, if applicable, proof of the individual's release from

incarceration.

(2)  The length, consistency and character of the

individual's employment history.

(3)  The circumstances of a section 5 offense for which

the individual was convicted and the nature of the

conviction.

(4)  If the individual asserts that a section 5 offense

was related to the individual's substance abuse, whether the

individual has undergone substance abuse treatment, is

maintaining recovery and the length of time the individual

has been in recovery.

(5)  Other evidence of postconviction rehabilitation,

including the individual's history of community service,

psychological counseling and character references.

(6)  In addition to evidence presented in the petition

for a certificate of employability, the department may

consider oral or written testimony or statements, relevant to

the factors listed above, from:

(i)  Licensed professionals.

(ii)  Members of the community.

(iii)  Public officials.

(iv)  Former employers of the individual.

(v)  A hospital intending to hire or engage the

applicant.

(vi)  Others with knowledge of the individual or

other evidence relevant to the petition.

(7)  In addition to evidence presented in the petition

for a certificate of employability, the department may

consider written statements submitted by the petitioning

individual that were prepared by:

(i)  A district attorney or other prosecutor in the

jurisdiction where the individual was convicted of an

offense listed in section 5.

(ii)  The victim or family members of the victim of

any section 5 offense committed by the individual.

(e)  Submission of evidence.--An individual petitioning for a

certificate of employability shall submit any and all written

evidence relevant to subsection (d) within 30 days of the

initial filing of the petition with the department. Any

submission of written evidence listed under subsection (d) after

this 30-day period shall be accepted by the hearing officer for

good cause shown.

(f)  Determination.--The department's hearing officer shall:

(1)  Conduct a hearing on a petition for a certificate of

employability within 90 days of the petition's being

received.

(2)  Issue a determination within 30 days of the hearing.

(3)  Have the authority to grant an extension of the

deadlines set by paragraph (1) or (2) if the petitioning

individual or the department shows good cause for an

extension.

(g)  Rules and regulations.--The department shall establish

rules and regulations for the review of petitions for a

certificate of employability consistent with this section.

Copies of the rules and regulations shall be made available for

distribution to the public.

(h)  Fees.--The department shall, by regulation, establish

reasonable fees to petition for a certificate of employability.

No petition shall be considered by the department unless

accompanied by a fee.

(i)  Notice to applicants.--Notification of the provisions of

this section shall be provided by the hospital, in a form

designated by the department, to each applicant.

(j)  Limitation of certificate of employability.--

Certificates of employability shall state that their only

purpose is to exempt successful petitioners from the criminal

record hiring prohibitions of this act and that they do not

address any other qualifications of the individual to be

employed in a hospital or obligate hospitals to hire or engage a

particular individual.

(k)  Grandfathering for training purposes.--An individual who

is granted a certificate of employability and who has not been

employed in a facility within a year of the date of petition for

the certificate will not be exempted from any training

requirements imposed by law for new employees.

Section 7.  Regulations.

The department shall promulgate the regulations necessary to

carry out the provisions of this act.

Section 8.  Violations.

(a)  Administrative.--

(1)  A hospital that fails to comply with the provisions

of this act commits a violation of this act and shall be

subject to an administrative penalty under paragraph (2).

(2)  The Commonwealth agency or Commonwealth agencies

that license a hospital shall have jurisdiction to determine

violations of this act and may issue an order assessing a

civil penalty of not more than $10,000. An order under this

paragraph shall be subject to 2 Pa.C.S. Chs. 5 Subch. A

(relating to practice and procedure of Commonwealth agencies)

and 7 Subch. A (relating to judicial review of Commonwealth

agency action).

(b)  Criminal.--A person who intentionally or willfully fails

to comply or obstructs compliance with this act commits a

misdemeanor of the third degree and shall, upon conviction, be

sentenced to pay a fine of $2,500 or to imprisonment for not

more than one year, or both.

Section 9.  Provisional employment for limited periods.

Notwithstanding the provisions of this act, a hospital may

employ applicants on a provisional basis for a single period not

to exceed 30 days or, for applicants under section 4(a)(2), a

period of 90 days, if all of the following criteria are met:

(1)  The applicant has applied for the information

required under section 4 and the applicant provides a copy of

the appropriate completed request forms to the hospital.

(2)  The hospital has no knowledge of information

pertaining to the applicant which would disqualify the

applicant from employment pursuant to section 5, subject to

18 Pa.C.S. § 4911 (relating to tampering with public records

or information).

(3)  The applicant swears or affirms in writing that the

applicant is not disqualified from employment under section

5.

(4)  Except as provided under section 6, if the

information obtained under section 4 reveals that the

applicant is disqualified from employment under section 5,

the applicant shall be immediately dismissed by the hospital.

(5)  The hospital agrees to supervise applicants during

the provisional employment. The department shall develop

guidelines regarding the supervision of applicants.

Section 10.  Requirements concerning hospital employees.

The following shall apply:

(1)  If the information obtained under section 4 reveals

that an employee of a hospital is disqualified from

employment under section 5(c), and the employee files a

petition for a certificate of employability under section 6,

the employee shall either, at the option of the hospital, be

placed on suspension without pay or continue employment under

appropriate supervision with no unsupervised direct contact

with patients until such time as a certificate of

employability is issued or an appeal is filed. The department

shall develop guidelines regarding the supervision of

employees under this paragraph.

(2)  If the information obtained under section 4 reveals

that an employee is disqualified from employment under

section 5(a) or is disqualified from employment under section

5(c) or (d) and fails to file a petition for a certificate of

employability within 30 days of receiving a prohibitive hire

letter from the department, the employee shall be immediately

dismissed.

(3)  Except as provided in paragraph (4), if a petition

for a certificate of employability for an employee is denied

pursuant to section 6, the employee on suspension or

supervised employment shall be immediately dismissed.

(4)  If an appeal of the denial of a certificate of

employability is filed by an individual on suspension or

supervised employment, then the facility shall have the

option to continue the suspension period as described in

paragraph (1).

(5)  Within 60 days of the effective date of this

section, hospitals shall provide copies of sections 5, 6 and

9 to all employees.

Section 11.  Civil immunity.

A hospital may not be held civilly liable for any action

directly related to good faith compliance with this act.

Section 12.  Other laws.

This act does not supersede background check-employment

restrictions imposed by another law if the other law is deemed

applicable to a hospital or portion of a hospital.

Section 13.  Report to General Assembly.

No later than one year following the effective date of this

section, the State Police and the department shall report to the

Public Health and Welfare Committee of the Senate and the Health

and Human Services Committee of the House of Representatives

their findings and recommendations regarding the implementation

of this act.

Section 14.  Severability.

The provisions of this act are severable. If any provision of

this act or its application to any person or circumstance is

held invalid, the invalidity shall not affect other provisions

or applications of this act which can be given effect without

the invalid provision or application.

Section 15.  Applicability.

This act shall apply as follows:

(1)  (i)  A hospital shall, within 18 months of the

effective date of this paragraph, comply with sections 4

and 5 as a condition of continued employment for each

employee.

(ii)  The hospital may use criminal history record

information previously used to comply with sections 4 and

5, upon certification by the hospital that:

(A)  The employee has been continuously employed

by the hospital since the date that the employee was

hired or engaged under this act.

(B)  The hospital has no knowledge that the

employee has been convicted of any criminal offense

since the date of the criminal history record

information on file for that employee.

(iii)  If the hospital cannot certify both conditions

under subparagraph (ii), it shall require the employee to

obtain a new criminal history record pursuant to section

4 before determining the employee's compliance with

sections 4 and 5.

(2)  An employee who has obtained the information

required under section 4 may transfer to another hospital

established and supervised by the same owner and shall not be

required to obtain additional reports before making the

transfer.

Section 16.  Effective date.

This act shall take effect in 180 days.