PRINTER'S NO. 717
No. 668 Session of 2007
INTRODUCED BY VANCE, BOSCOLA, BRUBAKER, COSTA, FONTANA, GREENLEAF, KITCHEN, O'PAKE, ORIE, RAFFERTY, REGOLA, STOUT, M. WHITE, C. WILLIAMS AND WONDERLING, MARCH 22, 2007
REFERRED TO PUBLIC HEALTH AND WELFARE, MARCH 22, 2007
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. 20070S0668B0717 - 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 20070S0668B0717 - 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) or retain an employee required to submit information 26 pursuant to section 13, if the applicant's or employee's 27 criminal history record information indicates the applicant or 28 employee has been convicted of any of the following offenses: 29 (1) An offense under one of the following provisions of 30 18 Pa.C.S. (relating to crimes and offenses) which is graded 20070S0668B0717 - 4 -
1 as a felony: 2 Chapter 25 (relating to criminal homicide). 3 Section 2702 (relating to aggravated assault), if it is 4 graded as a felony of the first degree. 5 Section 2709.1 (relating to stalking). 6 Section 2713 (relating to neglect of care-dependent 7 person). 8 Section 2901 (relating to kidnapping). 9 Section 3121 (relating to rape). 10 Section 3123 (relating to involuntary deviate sexual 11 intercourse). 12 Section 3124.1 (relating to sexual assault). 13 Section 3125 (relating to aggravated indecent assault). 14 Section 3301 (relating to arson and related offenses). 15 Section 3701 (relating to robbery). 16 Section 4302 (relating to incest). 17 Section 4304 (relating to endangering welfare of 18 children). 19 Section 6312 (relating to sexual abuse of children). 20 Section 6320 (relating to sexual exploitation of 21 children). 22 (2) An offense under one of the following provisions of 23 18 Pa.C.S. which is graded as a misdemeanor: 24 Section 2713 (relating to neglect of care-dependent 25 person). 26 Section 3126 (relating to indecent assault). 27 Section 4305 (relating to dealing in infant children). 28 (3) A Federal or out-of-State offense similar in nature 29 to any offense listed in paragraph (1) or (2). 30 (b) Ten-year ban.--In no case may a hospital hire an 20070S0668B0717 - 5 -
1 applicant required to submit information pursuant to section 2 4(a) or retain an employee required to submit information 3 pursuant to section 13 if the applicant's or employee's criminal 4 history record information as supplemented under subsection (c) 5 indicates the applicant or employee has been convicted, within 6 ten years immediately preceding the date of the report, not 7 including any time spent in incarceration, of any of the 8 following offenses: 9 (1) An offense graded a felony under the act of April 10 14, 1972 (P.L.233, No.64), known as The Controlled Substance, 11 Drug, Device and Cosmetic Act. 12 (2) An offense under one of the following provisions of 13 18 Pa.C.S. which is graded as a felony: 14 Section 2702, if it is graded as a felony of the second 15 degree. 16 Section 2902 (relating to unlawful restraint). 17 Section 3122.1 (relating to statutory sexual assault). 18 Section 3502 (relating to burglary). 19 Section 3702 (relating to robbery of motor vehicle). 20 Section 4101 (relating to forgery). 21 Section 4952 (relating to intimidation of witnesses or 22 victims). 23 Section 4953 (relating to retaliation against witness, 24 victim or party). 25 Section 5902 (relating to prostitution and related 26 offenses). 27 Section 5903(c) or (d) (relating to obscene and other 28 sexual materials and performances). 29 (3) An offense under one of the following provisions of 30 18 Pa.C.S. which is graded as a misdemeanor: 20070S0668B0717 - 6 -
1 Section 2504 (relating to involuntary manslaughter). 2 Section 2902. 3 Section 3127 (relating to indecent exposure). 4 Section 4101. 5 Section 4114 (relating to securing execution of documents 6 by deception). 7 Section 4303 (relating to concealing death of child). 8 Section 6301(a)(1) (relating to corruption of minors). 9 (4) A felony offense under 18 Pa.C.S. Ch. 39 (relating 10 to theft and related offenses) or two or more misdemeanors 11 under 18 Pa.C.S. Ch. 39. 12 (5) A Federal or out-of-State offense similar to any 13 offense listed in paragraph (1), (2), (3) or (4). 14 (c) Duty of applicant or employee.--An applicant or employee 15 required to submit information under section 4(a) or 13 and 16 sentenced for an offense enumerated under subsection (b) shall 17 provide the hospital with documentation of time spent in 18 incarceration and the date of release from incarceration. 19 (d) Right of review.--An applicant or employee may review, 20 challenge and appeal the completeness or accuracy of that 21 applicant's or employee's criminal history report under 18 22 Pa.C.S. Ch. 91 (relating to criminal history record 23 information). An applicant or employee may challenge the 24 decision of the department involving the Federal criminal 25 history record by filing an appeal with the department in 26 accordance with 2 Pa.C.S. (relating to administrative law and 27 procedure). 28 Section 6. Regulations. 29 The department shall promulgate the regulations necessary to 30 carry out the provisions of this act. 20070S0668B0717 - 7 -
1 Section 7. Violations. 2 (a) Administrative.-- 3 (1) A hospital which fails to comply with the provisions 4 of this act commits a violation of this act and shall be 5 subject to an administrative penalty under paragraph (2). 6 (2) The Commonwealth agency or Commonwealth agencies 7 which license a hospital shall have jurisdiction to determine 8 violations of this act and may issue an order assessing a 9 civil penalty of not more than $10,000. An order under this 10 paragraph shall be subject to 2 Pa.C.S. Chs. 5 Subch. A 11 (relating to practice and procedure of Commonwealth agencies) 12 and 7 Subch. A (relating to judicial review of Commonwealth 13 agency action). 14 (b) Criminal.--A person who intentionally or willfully fails 15 to comply or obstructs compliance with this act commits a 16 misdemeanor of the third degree and shall, upon conviction, be 17 sentenced to pay a fine of $2,500 or to imprisonment for not 18 more than one year, or both. 19 Section 8. Conditional employees for limited periods. 20 Notwithstanding the provisions of this act, a hospital may 21 employ applicants on a conditional basis for a single period not 22 to exceed 30 days or, for applicants under section 4(a)(2), a 23 period of 90 days, if all of the following criteria are met: 24 (1) The applicant has applied for the information 25 required under section 4 and the applicant provides a copy of 26 the appropriate completed request forms to the hospital. 27 (2) The hospital has no knowledge of information 28 pertaining to the applicant which would disqualify the 29 applicant from employment pursuant to section 5, subject to 30 18 Pa.C.S. § 4911 (relating to tampering with public records 20070S0668B0717 - 8 -
1 or information). 2 (3) The applicant swears or affirms in writing that the 3 applicant is not disqualified from employment under section 4 5. 5 (4) If the information obtained under section 4 reveals 6 that the applicant is disqualified from employment under 7 section 5, the applicant shall be immediately dismissed by 8 the hospital. 9 Section 9. Requirements concerning current hospital employees. 10 The following shall apply: 11 (1) If the information obtained under section 4 reveals 12 that an individual currently employed at a hospital is 13 disqualified from employment under section 5(b), the 14 individual shall either, at the option of the hospital, be 15 placed on suspension without pay or continue employment under 16 supervision with no unsupervised direct contact with 17 patients. 18 (2) Within 30 days of the effective date of this 19 section, each hospital shall provide copies of this section 20 to all current hospital employees. 21 Section 10. Civil immunity. 22 A hospital may not be held civilly liable for any action 23 directly related to good faith compliance with this act. 24 Section 11. Other laws. 25 This act does not supersede background check-employment 26 restrictions imposed by another law if the other law is deemed 27 applicable to a hospital or portion of a hospital. 28 Section 12. Report to General Assembly. 29 No later than one year following the effective date of this 30 section, the State Police and the department shall report to the 20070S0668B0717 - 9 -
1 Public Health and Welfare Committee of the Senate and the Health 2 and Human Services Committee of the House of Representatives 3 with their findings and recommendations regarding the 4 implementation of this act. 5 Section 13. Applicability. 6 This act shall apply as follows: 7 (1) (i) An individual who, on the effective date of 8 this section, is a current employee of a hospital shall, 9 within 12 months of the effective date of this section, 10 comply with section 4 as a condition of continued 11 employment. 12 (ii) Criminal history record information which meets 13 the requirements of section 4 was obtained within the 14 four-year period preceding the effective date of this 15 section and was submitted to a hospital prior to the 16 effective date of this section shall be deemed current 17 for the purposes of subparagraph (i) upon review for 18 compliance with section 5 by the appropriate entity. 19 (2) An employee who has obtained the information 20 required under section 4 may transfer to another hospital 21 established and supervised by the same owner and shall not be 22 required to obtain additional reports before making the 23 transfer. 24 Section 14. Severability. 25 The provisions of this act are severable. If any provision of 26 this act or its application to any person or circumstance is 27 held invalid, the invalidity shall not affect other provisions 28 or applications of this act which can be given effect without 29 the invalid provision or application. 30 Section 15. Effective date. 20070S0668B0717 - 10 -
1 This act shall take effect in 60 days. L27L35JLW/20070S0668B0717 - 11 -