CHAPTER 289
HB 1672-FN – FINAL VERSION
07Mar2006… 1140h
04/20/06 1795s
05/03/06 1975s
24May2006… 2381eba
2006 SESSION
01/04
HOUSE BILL 1672-FN
AN ACT relative to a registry for founded cases of abuse, neglect, or exploitation of incapacitated adults, relative to certain background checks, and establishing a task force relative to central registries.
SPONSORS: Rep. Naro, Graf 7; Rep. Carson, Rock 3; Rep. Whalley, Belk 5; Rep. Bleyler, Graf 9; Rep. Hagan, Hills 17; Sen. Martel, Dist 18; Sen. Estabrook, Dist 21; Sen. Green, Dist 6; Sen. Hassan, Dist 23
COMMITTEE: Health, Human Services and Elderly Affairs
This bill:
I. Requires employers of programs licensed, certified, or funded by the department of health and human services to check the backgrounds of certain prospective employees against the registry for founded cases of abuse, neglect, or exploitation of incapacitated adults.
II. Clarifies the criminal records check procedures for child day care providers.
III Establishes a task force to study certain registries.
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Explanation: Matter added to current law appears in bold italics.
Matter removed from current law appears [in brackets and struckthrough.]
Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
07Mar2006… 1140h
04/20/06 1795s
05/03/06 1975s
24May2006… 2381eba
06-2748
01/04
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Six
AN ACT relative to a registry for founded cases of abuse, neglect, or exploitation of incapacitated adults, relative to certain background checks, and establishing a task force relative to central registries.
Be it Enacted by the Senate and House of Representatives in General Court convened:
289:1 Elderly and Adult Services; Immunity From Liability. Amend RSA 161-F:47 to read as follows:
161-F:47 Immunity From Liability. Any person or agency, other than an alleged perpetrator, participating in good faith in the making of a report of an alleged incident of adult abuse, neglect or exploitation, providing information relative to such incident or following a reporting protocol developed jointly with the department, or who in good faith investigates the report, administers the registry, or who participates in a judicial or administrative proceeding resulting from that report, shall have immunity from any liability, civil or criminal, that might otherwise be incurred or imposed. Any person or agency providing information in good faith, including materials requested by the department pursuant to RSA 161-F:56, shall have the same immunity with respect to participation in any investigation by the commissioner or his authorized representative or in any judicial proceeding resulting from such report.
289:2 Registry for Founded Cases of Abuse, Neglect, or Exploitation of Incapacitated Adults. RSA 161-F:49 is repealed and reenacted to read as follows:
161-F:49 Registry.
I. There shall be established a state registry of abuse, neglect, and exploitation reports at the department for the purpose of maintaining a record of information on each case of alleged abuse, neglect, or exploitation toward an individual by a paid or volunteer caregiver or a caregiver hired or obtained by an agency, individual, family, or guardian. Unfounded cases shall not be maintained on the registry. The department shall maintain statistical, non-identifying information on founded cases as the department determines is necessary to track and address trends. This section shall apply in each case of abuse, neglect, or exploitation by a paid caregiver toward an individual that is founded by an investigator. For the purposes of this section:
(a) “Individual” means an individual found eligible for or receiving services pursuant to RSA 171-A, RSA 135-C:13, RSA 135-C:14, RSA 161-E, RSA 161-I, or programs licensed under RSA 151:2, I(b), (e), or (f), or who is an incapacitated adult, as defined under RSA 161-F:43, VII.
(b) The investigators shall be designated or employed by the department, in accordance with a protocol developed by the department to ensure objectivity, thoroughness, timeliness, and uniformity in methodology and format in the conduct of investigations and investigation reports. The investigators may include investigators employed by area agencies or community mental health centers, if designated by the department.
II. Within 5 business days of completion of an investigation report by an investigator of alleged abuse, neglect, or exploitation by a caregiver of an individual, the investigator shall provide the investigation report to the commissioner, or designee. Except as provided in paragraph IV, for a founded report, the commissioner, or designee, shall, within 5 business days, notify the perpetrator:
(a) Of the founded case against him or her and that such information shall be entered on the registry and the consequences of such a finding.
(b) Of the right to contest the finding by appealing within 10 business days.
(c) Of the right to receive a full and fair administrative hearing, including the right to be represented by counsel at his or her own expense.
(d) Of the right to appeal an adverse administrative hearing decision to the probate court in accordance with paragraph V.
(e) That he or she may petition the probate court to expunge his or her name from the registry pursuant to RSA 161-F:49, IX.
III. Except as provided in paragraph IV, for a founded report, the commissioner, or designee, shall notify the employer:
(a) Relative to a prospective employee who is not on the registry of that fact within 5 days of receipt of a request from the employer.
(b) Relative to a prospective employee who is on the registry of that fact within 5 business days of receipt of the request from the employer, and the employer shall include in the notice the date the person was placed on the registry.
IV. A founded case of abuse, neglect, or exploitation, and other information the commissioner deems appropriate, shall be entered on the registry upon:
(a) Expiration of the 10-day period for appeal when the perpetrator does not request an appeal.
(b) An administrative hearing officer sustaining the finding, unless an appeal is filed in accordance with paragraph V and an order of stay is issued by the probate court.
V. If the finding is sustained after an administrative hearing, a person shall have the right to appeal as follows:
(a) A person may file a petition in the Merrimack county probate court to review the final order by the commissioner, or designee, within 30 days of the date of the final order. Jurisdiction to hear such appeals is vested in the Merrimack county probate court.
(b) At the earliest practical time, the court shall review the record as developed before the commissioner, or designee, together with any written legal argument presented to the court. Based on that review, the court may affirm or reverse the decision of the commissioner, or designee, or order that oral argument be held. As justice may require, the court may remand the case to the commissioner, or designee, for further findings or rulings. The petition for appeal shall set forth all the grounds upon which the final order is sought to be overturned. Issues not raised by the appellant before the commissioner, or designee, shall not be raised before the probate court. The burden of proof shall be upon the appellant to show that the decision of the commissioner, or designee, was clearly unreasonable or unlawful, and all findings of the commissioner, or designee, upon all questions of fact properly before him or her shall be deemed to be prima facie lawful and reasonable. The order or decision appealed from shall not be vacated except for errors of law, unless the court is satisfied, by a clear preponderance of the evidence, that the order is unjust or unreasonable.
(c) No new or additional evidence shall be introduced in the probate court. The case shall be determined upon the record and evidence transferred, except that in any case, if it shall be necessary in order that no party shall be deprived of any constitutional right, or if the court determines that justice requires the reception of evidence of facts which have occurred since the hearing, or which by reason of accident, mistake, or misfortune could not have been offered before the commissioner, or designee, it shall remand the case to the commissioner, or designee, to receive and consider such additional evidence.
VI. If it is determined by the investigator or after a hearing requested pursuant to subparagraph II(c) that a founded case was caused by factors beyond the control of the perpetrator, then the finding shall not be entered onto the registry as founded.
VII. All employers of programs which are licensed, certified, or funded by the department to provide services to individuals shall be required before hiring a prospective employee who may have client contact to submit his or her name, for review against the registry of founded reports of abuse, neglect, and exploitation to determine whether the person is on the registry. The employer shall not hire the prospective employee if the person is listed on the registry with a founded case of abuse, neglect, or exploitation, unless the employer requests and obtains a waiver from the department to hire such person. The employer, upon receiving of notice that a prospective employee is on the registry and in order to determine whether he or she should request a waiver from the department, may request permission from the prospective employee for the authority to obtain further information about a founded case of abuse, neglect, or exploitation. Any individual hiring a caregiver directly, or through an authorized representative or fiscal intermediary, to provide personal care services, as defined in RSA 161-E or RSA 161-I, may, with the consent of the prospective employee, submit the prospective employee’s name for review against the registry and, if the prospective employee is on the registry, and with the further permission of the prospective employee, obtain information about any founded case. The individual shall not be required in such situations to obtain a waiver prior to hiring a person on the registry. It shall be unlawful for any employer other than those specified under this paragraph to require as a condition of employment that the employee submit his or her name for review against the registry of founded reports of abuse, neglect, or exploitation and any violation of this provision shall be punishable as a violation.
VIII. Founded reports of abuse, neglect, or exploitation shall be retained for a period of 7 years subject to an individual’s right to petition for the earlier removal of his or her name from the registry as provided in this section.
IX. Any individual whose name is listed in the founded reports maintained on the central registry may petition the probate court to have his or her name expunged from the registry as follows:
(a) A petition to expunge shall be filed in the probate court where the petitioner resides or where the abuse, neglect, or exploitation occurred.
(b) A petition to expunge shall be filed on forms provided by the probate courts. The petition shall include certified copies of the petitioner’s criminal record and may include any other information the petitioner deems relevant.
(c) When a petition to expunge is filed, the probate court shall require the department to report to the court concerning any additional founded abuse, neglect, or exploitation reports relative to the petitioner and shall require that the petitioner submit the petitioner’s name, birth date, and address to the state police to obtain information about criminal convictions. The court may require the department to provide any additional information that the court believes may aid it in making a determination on the petition.
(d) Upon the receipt of the department’s report, the court may act on the petition without further hearing or may schedule the matter for hearing at the request of either party. If the court determines that the petitioner does not pose a present threat to the safety of adults and has exhibited best efforts to eliminate the likelihood of reoccurrence of the type of behavior that resulted in his or her entry onto the registry, the court shall grant the petition and order the department to remove the individual’s name from the registry. Otherwise, the petition shall be dismissed.
X. The department shall, in the notice it sends out pursuant to RSA 161-F:49, II(a), notify the perpetrator of his or her right to petition to have his or her name expunged from the registry. No petition to expunge shall be brought within one year from the date that the petitioner’s name was initially entered on the registry. If the petition to expunge is denied, no further petition shall be brought more frequently than every 3 years thereafter.
XI. The commissioner shall adopt rules, pursuant to RSA 541-A, relative to:
(a) Setting forth the process and criteria for requesting and granting a waiver pursuant to RSA 161-F:49, VII.
(b) Safeguarding the confidentiality of and access to the registry except for the functions necessary to comply with this section. Such safeguards shall include limitations on which persons in an employment situation may request and access the names of persons on the registry.
289:3 Task Force Established.
I. There is established a task force to study:
(a) The need for further improvements in the efficiency, effectiveness, and accessibility of the registries established pursuant to RSA 161-F:49 and RSA 169-C:35. The task force shall also study the provisions of 42 C.F.R. 488(c)-(e);
(b) The efficiency, effectiveness, and accessibility of the criminal records check process and the statutes relative to such checks for those providing care to vulnerable populations, served through the department, including, but not limited to, individuals eligible for or receiving services pursuant to RSA 171-A, RSA 135-C:13, RSA 135-C:14, or programs licensed under RSA 151:2, I(b), (e), or (f), or who is an incapacitated adult as defined in RSA 161-F:43, VII; and
(c) Whether the department shall make available certain information regarding a complaint about a permitted or licensed child day care agency, under RSA 170-E:17.
II. The task force may form such subcommittees as deemed appropriate.
289:4 Membership and Compensation.
I. The members of the task force shall be as follows:
(a) Two members of the house of representatives, appointed by the speaker of the house of representatives.
(b) Two members of the senate, appointed by the president of the senate.
(c) The commissioner of the department of health and human services and a member appointed by the commissioner of the department of health and human services, or 2 designees.
(d) The long-term care ombudsman, department of health and human services.
(e) The commissioner of the department of education, or designee.
(f) The attorney general, or designee.
(g) A representative of the Disabilities Rights Center, appointed by the center.
(h) A representative of New Hampshire Legal Assistance, appointed by such office.
(i) A representative of the Community Support Network, Inc. of New Hampshire, appointed by the network.
(j) A representative of the New Hampshire Community Behavioral Health Association, appointed by the association.
(k) A representative of Granite State Independent Living Foundation, appointed by such foundation.
(l) A representative of the Child Care Advisory Council, appointed by such council.
(m) A representative of a licensed child day care agency, appointed by the commissioner of the department of health and human services.
(n) Two parents of children attending a licensed child day care agency, appointed by the commissioner of the department of health and human services.
II. The task force shall solicit information from any other person or entity the task force deems relevant to its study.
III. Legislative members of the task force shall receive mileage at the legislative rate when attending to the duties of the task force.
289:5 Duties. The task force shall study the need for further improvements in the efficiency, effectiveness, and accessibility of the registries established pursuant to RSA 161-F:49 and RSA 169-C:35 and shall include in its study an examination of 42 C.F.R. 488(c)-(e). The task force shall determine the need, desirability, and feasibility of merging or combining the registries into one registry or otherwise improving access to and between the registries so that all licensed, certified, and funded programs by the department of health and human services and the department of education or other local or state programs have greater access to founded perpetrator information in and across all systems serving children and incapacitated or vulnerable adults. The task force shall also study the confidentiality issues concerning complaints and investigations and the public availability of such information relative to licensed child day care agencies.
289:6 Chairperson; Quorum. The members of the task force shall elect a chairperson from among the members. The first meeting of the task force shall be called by the first-named house member. The first meeting of the task force shall be held within 45 days of the effective date of this section. Nine members of the task force shall constitute a quorum.
289:7 Report. The task force shall report its findings and any recommendations for proposed legislation to the speaker of the house of representatives, the president of the senate, the house clerk, the senate clerk, the governor, and the state library on or before December 1, 2006.
289:8 State Registry and Criminal Records Check; Revocation of Registration and Withholding of State Funds. RSA 170-E:7, I and II are repealed and reenacted to read as follows:
I. Child day care providers who are required to be licensed or registered according to the provisions of this chapter shall, no later than an individual’s first day of employment, which individual is responsible for the care of, or having regular contact with children, and upon adding new household members or other individuals who will have regular contact with children, submit to the department, the names, birth names, birth dates, and addresses of such individuals and other information required by the department as prescribed by rules adopted by the commissioner under RSA 541-A. The persons described in this paragraph shall submit to the department a notarized criminal history records release form, as provided by the New Hampshire division of state police, which authorizes the release of the person’s criminal records, if any. The person shall submit with the release form a complete set of fingerprints taken by a qualified law enforcement agency or an authorized employee of the department. In the event that the first set of fingerprints is invalid due to insufficient pattern, a second set of fingerprints shall be necessary to complete the criminal history records check. If, after 2 attempts, a set of fingerprints is invalid due to insufficient pattern, the department may, in lieu of the criminal history records check, accept police clearances from every city, town, or county where the person has lived during the past 5 years.
II.(a) The department shall, for every name submitted on an application, in the registration process, and for each individual for whom information is required to be submitted pursuant to paragraph I, review the names, birth names, birth dates, and current and previous addresses of such persons against the state registry of founded abuse and neglect reports.
(b) The department shall submit the criminal history records release form to the New Hampshire division of state police, which shall conduct a criminal history records check through its records and through the Federal Bureau of Investigation. Upon completion of the background investigation, the division of state police shall release copies of the criminal conviction records to the department. The department shall maintain the confidentiality of all criminal history records information received pursuant to this paragraph.
(c) The costs of criminal history record checks shall be borne by the child day care provider; provided, that the child day care provider may require an applicant to pay the actual costs of the criminal history check of the employee.
289:9 Effective Date.
I. Sections 3-7 and 9 shall take effect upon its passage.
II. The remainder of this act shall take effect July 1, 2007.
Approved: June 15, 2006
Effective: I. Sections 3-7 and 9 shall take effect June 15, 2006
II. Remainder shall take effect July 1, 2007