A BILL TO BE ENTITLED
AN ACT TO ESTABLISH A PILOT PROGRAM TO CONDUCT NATIONAL CRIMINAL HISTORY RECORD CHECKS OF PERSONS SEEKING EMPLOYMENT TO PROVIDE DIRECT CARE IN ADULT CARE HOMES AND CONTRACT AGENCIES OF ADULT CARE HOMES, AND TO MAKE CONFORMING CHANGES, as recommended by the north carolina study commission on aging.
The General Assembly of North Carolina enacts:
SECTION 1.  The Department of Health and Human Services shall establish a pilot program to review the criminal history records of applicants for positions not requiring an occupational license but requiring direct resident care in adult care homes and contract agencies of adult care homes.  Pursuant to this program, criminal history record checks for the employees of adult care homes and contract agencies of adult care homes shall be conducted as provided in G.S. 131D‑40, except for the following:
(1)	At the time it submits the request for the criminal history record check to the Department of Justice, the adult care home or contract agency of the adult care home shall provide a copy of the request to the Department of Health and Human Services, Division of Facility Services. If the adult care home or contract agency of the adult care home receives the criminal history information from a private entity, then within two business days of receiving the criminal history information, the adult care home or contract agency shall forward the information to the Department of Health and Human Services, Division of Facility Services, for a determination as to whether the applicant should be disqualified from employment.
(2)	Notwithstanding G.S. 114‑19.10, the Department of Justice shall return the results of national criminal history record checks for employment positions not covered by Public Law 105‑277 and State criminal history record checks to the Department of Health and Human Services, Division of Facility Services. Within five business days of receipt of the criminal history of the person, the Department of Health and Human Services, Division of Facility Services, shall determine whether the applicant should be disqualified from employment, unless the Department is unable to determine within five business days the disposition or accuracy of the criminal history information obtained by the Department, in which case the Department shall make the determination as soon as possible after verifying the disposition or accuracy of the criminal history information. By the next business day following its determination, the Department shall notify the adult care home or contract agency of its determination and shall also notify the applicant by a written statement as to the Department's determination and the basis on which the determination was made. The applicant shall be disqualified from employment if the applicant's criminal history shows that:
a.	The applicant was convicted of any of the offenses of Homicide under Article 6 of Chapter 14 of the General Statutes or Rape and Other Sex Offenses under Article 7A of Chapter 14 of the General Statutes, or equivalent offenses under the laws of another state.
b.	The applicant was convicted of any other offenses listed in G.S. 131D‑40(d) within 10 years prior to the date of application for employment, or equivalent offenses under the laws of another state.
(3)	If the criminal history of the applicant reveals a conviction of any of the other offenses listed in G.S. 131D‑40(d) more than 10 years prior to the date of application for employment, the Department of Health and Human Services shall obtain the public record document reflecting the offense and shall provide the public record of the conviction to the adult care home or contract agency of the adult care home, and the adult care home or contract agency shall determine whether the applicant should be employed after considering the factors contained in G.S. 131D‑40(b).
(4)	If the adult care home or contract agency of the adult care home disqualifies an applicant or terminates a conditional employee based on the Department's determination or on its own consideration, then the adult care home or contract agency may disclose public criminal history information or public information that in the Department's determination is relevant to the disqualification but shall not provide the criminal record check to the applicant. All information that the Department receives through checking the criminal history is privileged information and is not a public record but is for the exclusive use of the Department and those persons authorized under this act and under federal law to receive the information.
(5)	An adult care home or contract agency of an adult care home may employ an applicant conditionally prior to obtaining the Department's determination or making its own determination, but shall terminate immediately the conditional employment of an applicant upon receiving notification from the Department that the applicant is disqualified or upon making its own determination that the applicant is disqualified.
(6)	The pilot program shall include notices to the applicant of the criminal history record check and of the applicant's right to appeal the Department's determination as a final agency decision pursuant to Chapter 150B of the General Statutes. 
SECTION 2.(a)  The Department of Health and Human Services shall collect the following information during the pilot program:
(1)	The number of persons whose criminal histories were reviewed by the Department.
(2)	The number of persons who were disqualified by the Department and nature of the disqualifying offenses.
(3)	The cost of the pilot program.
(4)	The length of time between initial requests for criminal history record checks and the notices sent from the Department as to its determination.
SECTION 2.(b)  The Department of Health and Human Services shall convene a workgroup that shall include representatives of the Department of Justice, nursing homes, adult care homes, home care agencies, and contract agencies of nursing homes and adult care homes.  The Department shall conduct meetings at least monthly during the pilot program to discuss the progress of the pilot programs and any problems encountered in conducting the program.
SECTION 2.(c)  The Department shall report the information required under this section and report the progress of the pilot program and the activities of the workgroup, including any statutory changes needed to fully implement G.S. 131D‑40 and G.S. 131E‑265, to the House of Representatives Appropriations Subcommittee on Health and Human Services, the Senate Appropriations Committee on Health and Human Services, and to the North Carolina Study Commission on Aging on or before January 15, 2005.
SECTION 3.  Section 10.8E of S.L. 2003‑284 reads as rewritten:
"SECTION 10.8E.  Notwithstanding any other provision of law to the contrary, the requirements of G.S. 131E‑265 for nursing homes to conduct national criminal history record checks for employment positions other than those involving direct patient care shall become effective no earlier than July 1, 2005. Notwithstanding any other provision of law to the contrary, the requirements of G.S. 131D‑2 for adult care homes to conduct national criminal records checks for all staff positions except for staff positions involving direct care of residents shall become effective no earlier than July 1, 2005."
SECTION 4.  There is appropriated from the General Fund to the Department of Health and Human Services for the 2004‑2005 fiscal year the sum of one hundred fifty thousand dollars ($150,000) to implement the pilot program in this act.
SECTION 5.  This act becomes effective July 1, 2004.