S 0238 General Bill, By McConnell and Giese
 A BILL TO AMEND CHAPTER 7, TITLE 44, CODE OF LAWS OF SOUTH CAROLINA, 1976,
 RELATING TO HEALTH FACILITIES, BY ADDING ARTICLE 27 SO AS TO PROHIBIT NURSING
 HOMES AND HOME HEALTH AGENCIES FROM EMPLOYING A PERSON WHO HAS A CRIMINAL
 RECORD, TO REQUIRE CRIMINAL BACKGROUND CHECKS ON APPLICANTS, AND TO PROVIDE
 IMMUNITY FROM LIABILITY FOR INFORMATION RELEASED OR TERMINATION FROM
 EMPLOYMENT; AND TO AMEND SECTION 43-35-25 RELATING TO PERSONS REQUIRED TO
 REPORT ADULT ABUSE, NEGLECT, AND EXPLOITATION, SO AS TO REQUIRE THE AGENCIES
 RECEIVING SUCH REPORTS TO ALSO REPORT THIS INFORMATION TO THE ATTORNEY
 GENERAL.

   01/30/01  Senate Introduced and read first time SJ-18
   01/30/01  Senate Referred to Committee on Medical Affairs SJ-18

TO AMEND CHAPTER 7, TITLE 44, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO HEALTH FACILITIES, BY ADDING ARTICLE 27 SO AS TO PROHIBIT NURSING HOMES AND HOME HEALTH AGENCIES FROM EMPLOYING A PERSON WHO HAS A CRIMINAL RECORD, TO REQUIRE CRIMINAL BACKGROUND CHECKS ON APPLICANTS, AND TO PROVIDE IMMUNITY FROM LIABILITY FOR INFORMATION RELEASED OR TERMINATION FROM EMPLOYMENT; AND TO AMEND SECTION 43-35-25 RELATING TO PERSONS REQUIRED TO REPORT ADULT ABUSE, NEGLECT, AND EXPLOITATION, SO AS TO REQUIRE THE AGENCIES RECEIVING SUCH REPORTS TO ALSO REPORT THIS INFORMATION TO THE ATTORNEY GENERAL.

Be it enacted by the General Assembly of the State of South Carolina:

SECTION 1. Chapter 7, Title 44 of the 1976 Code is amended by adding:

Section 44-7-3300. For purposes of this article:

(1) 'Conviction' means a finding or verdict of guilty or a plea of guilty regardless of whether an appeal of the conviction has been sought.

(2) 'Crime' means:

(a) a violent crime as defined by Section 16-1-60;

(b) criminal sexual conduct in the third degree (Section 16-3-654);

(c) criminal domestic violence (Section 16-25-20);

(d) assault and battery of a high and aggravated nature;

(e) unlawful neglect of a child or helpless person by a legal custodian (Section 20-7-50);

(f) ill-treating children, apprentices, servants, incompetents or helpless persons (Section 20-7-60);

(g) abuse of incapacitated persons (Section 43-29-41);

(h) abuse or physical or mental injury to client or patient (Section 43-30-100);

(i) administering or attempting to administer poison (Section 16-3-70);

(j) unlawful and malicious tampering with a human drug product or food (Section 16-2-75); or

(k) a criminal offense similar in nature to the above listed crimes committed in another jurisdiction or under federal law.

(3) 'Criminal record' means:

(a) conviction of a crime;

(b) arrest, charge, and sentencing for a crime where:

( i) a plea of nolo contendere was entered to the charge;

(ii) first offender treatment without adjudication of guilt pursuant to the charge was granted; or

(iii) adjudication or sentencing was otherwise withheld or not entered on the charge; or

(iv) arrest and charges for a crime if the charge is pending.

(D) 'Employment applicant' or 'applicant' means a person seeking employment by a nursing home or home health care agency after June 30, 1999.

(E) 'Nursing Home' means an institution or facility licensed under law or pursuant to regulations for nursing homes by the Department of Health and Environmental Control, whether proprietary or nonprofit including, but not limited to, nursing homes owned or administered by the State or a political subdivision of the State.

(F) 'Home Health Care Agency' means a public, nonprofit, or proprietary organization, whether owned or operated by one or more persons or legal entities, which furnishes or offers to furnish home health services.

Section 44-7-3310. (A) A nursing home or home health care agency shall request the South Carolina Law Enforcement Division to perform a criminal history check on an employment applicant to determine whether the applicant has a criminal record. If the applicant has a criminal record, the nursing home or home health care agency may not hire the applicant. The nursing home or home health care agency must notify the applicant that:

(1) for this type of employment, state law requires a criminal history check as a condition of employment;

(2) the applicant has a right to obtain a copy of the criminal history report and challenge the accuracy and completeness of the report;

(3) state law prohibits a nursing home or home health care agency from hiring an applicant if the criminal history check indicates that the applicant has a criminal record unless the applicant's record is cleared based on a fingerprint-based records check.

The criminal history background check must be in the form prescribed by the South Carolina Law Enforcement Division (SLED) and must be submitted to SLED in person, by mail, or by facsimile. The fee may not exceed the actual cost of processing the request. SLED shall perform the criminal history check within a reasonable time, not to exceed three days of receiving the request.

(B) By August 1, 1999, nursing homes and home health care agencies must initiate a criminal history check on all current employees whose duties involve direct care of clients, patients, or residents.

Section 44-7-3320. An employment applicant whose criminal history check indicates a criminal record may request that the nursing home or home health care agency commence a fingerprint-based criminal background check by submitting any necessary fees and information in a form and manner prescribed by SLED within 30 days after the criminal history report is received by the nursing home or home health care agency. The fee for a fingerprint-based record check may not exceed the actual cost of conducting the record check.

Section 44-7-3330. (A) The law enforcement agency providing the criminal history record pursuant to this article is not responsible for the accuracy of information and is not liable for defamation, invasion of privacy, negligence, or any determination based on them pursuant to this article.

(B) A nursing home, home health care agency, administrators, or employees of a nursing home or a home health care agency, have no liability for wrongful discharge, unemployment security benefits, or any other claim based upon:

(1) refusal to employ a person with a criminal record;

(2) termination of employment of a person with a criminal record already employed by the nursing home or home health care agency; or

(3) other action taken in good faith reliance upon the criminal history report received pursuant to this article."

SECTION 2. Section 43-35-25(D) of the 1976 Code, as added by Act 110 of 1993 is amended by adding at the end:

"An investigative entity receiving a report under this section also must report this information to the Attorney General or his designee."

SECTION 3. This act takes effect July 1, 2001.