H 3587 General Bill, By Cooper, Allison, Barfield, Barrett, J. Brown, Cato, 
Cobb-Hunter, Govan, Harrell, Harrison, Hinson, Kelley, Kirsh, Martin, 
Meacham-Richardson, J.H. Neal, Sandifer, Sinclair, W.D. Smith, Thompson, 
Townsend, Trotter, Walker, White, Wilkins, Witherspoon and A. Young
 A BILL TO AMEND CHAPTER 7, TITLE 44, CODE OF LAWS OF SOUTH CAROLINA, 1976,
 RELATING TO HOSPITALS, TUBERCULOSIS CAMPS AND HEALTH SERVICES DISTRICTS, BY
 ADDING ARTICLE 27 SO AS TO PROHIBIT HOSPITALS, NURSING HOMES, RESIDENTIAL CARE
 FACILITIES, AND HOME HEALTH CARE AGENCIES FROM EMPLOYING A PERSON WHO HAS A
 CRIMINAL RECORD, TO AUTHORIZE AN APPLICANT TO OBTAIN A FINGERPRINT-BASED
 CRIMINAL BACKGROUND CHECK IF THE RECORD CHECK INDICATES THE PERSON HAS A
 CRIMINAL RECORD, AND TO PROVIDE IMMUNITY FROM LIABILITY FOR THE LAW
 ENFORCEMENT AGENCY CONDUCTING THE CRIMINAL RECORD CHECK AND THE FACILITIES OR
 AGENCIES WHICH TAKE EMPLOYMENT ACTION BASED ON THE RECORD CHECK; BY ADDING
 SECTION 44-6-110 SO AS TO REQUIRE A PERSON SEEKING CERTIFICATION AS A NURSING
 ASSISTANT BY THE DEPARTMENT OF HEALTH AND HUMAN SERVICES TO SUBMIT A CRIMINAL
 RECORD CHECK AS A CONDITION OF CERTIFICATION; TO AMEND SECTIONS 40-33-530,
 40-33-560, 40-33-730, AND 40-33-760, ALL AS AMENDED, AND ALL RELATING TO
 LICENSURE AND RECIPROCAL LICENSURE OF REGISTERED NURSES AND LICENSED PRACTICAL
 NURSES, RESPECTIVELY, SO AS TO REQUIRE AN APPLICANT TO OBTAIN A CRIMINAL
 RECORD CHECK AS A CONDITION OF LICENSURE AND OF ISSUANCE OF A RECIPROCAL
 LICENSE; TO AMEND SECTION 43-35-25, RELATING TO REPORTS OF ADULT ABUSE,
 NEGLECT, AND EXPLOITATION, SO AS TO REQUIRE AN INVESTIGATIVE ENTITY RECEIVING
 SUCH A REPORT TO ALSO REPORT THIS INFORMATION TO THE ATTORNEY GENERAL; AND TO
 EXEMPT FROM THE REQUIREMENTS OF THIS ACT REGISTERED NURSES, LICENSED PRACTICAL
 NURSES, AND NURSING ASSISTANTS EMPLOYED IN A HOSPITAL, NURSING HOME,
 RESIDENTIAL CARE FACILITY, OR HOME HEALTH AGENCY ON THIS ACT'S EFFECTIVE DATE
 AND TO REQUIRE COMPLIANCE IF SUBSEQUENTLY THE PERSON IS NOT EMPLOYED BY ONE OF
 THESE FACILITIES OR AGENCIES FOR ONE YEAR.

   02/15/01  House  Introduced and read first time HJ-39
   02/15/01  House  Referred to Committee on Medical, Military,
                     Public and Municipal Affairs HJ-40

TO AMEND CHAPTER 7, TITLE 44, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO HOSPITALS, TUBERCULOSIS CAMPS AND HEALTH SERVICES DISTRICTS, BY ADDING ARTICLE 27 SO AS TO PROHIBIT HOSPITALS, NURSING HOMES, RESIDENTIAL CARE FACILITIES, AND HOME HEALTH CARE AGENCIES FROM EMPLOYING A PERSON WHO HAS A CRIMINAL RECORD, TO AUTHORIZE AN APPLICANT TO OBTAIN A FINGERPRINT-BASED CRIMINAL BACKGROUND CHECK IF THE RECORD CHECK INDICATES THE PERSON HAS A CRIMINAL RECORD, AND TO PROVIDE IMMUNITY FROM LIABILITY FOR THE LAW ENFORCEMENT AGENCY CONDUCTING THE CRIMINAL RECORD CHECK AND THE FACILITIES OR AGENCIES WHICH TAKE EMPLOYMENT ACTION BASED ON THE RECORD CHECK; BY ADDING SECTION 44-6-110 SO AS TO REQUIRE A PERSON SEEKING CERTIFICATION AS A NURSING ASSISTANT BY THE DEPARTMENT OF HEALTH AND HUMAN SERVICES TO SUBMIT A CRIMINAL RECORD CHECK AS A CONDITION OF CERTIFICATION; TO AMEND SECTIONS 40-33-530, 40-33-560, 40-33-730, AND 40-33-760, ALL AS AMENDED, AND ALL RELATING TO LICENSURE AND RECIPROCAL LICENSURE OF REGISTERED NURSES AND LICENSED PRACTICAL NURSES, RESPECTIVELY, SO AS TO REQUIRE AN APPLICANT TO OBTAIN A CRIMINAL RECORD CHECK AS A CONDITION OF LICENSURE AND OF ISSUANCE OF A RECIPROCAL LICENSE; TO AMEND SECTION 43-35-25, RELATING TO REPORTS OF ADULT ABUSE, NEGLECT, AND EXPLOITATION, SO AS TO REQUIRE AN INVESTIGATIVE ENTITY RECEIVING SUCH A REPORT TO ALSO REPORT THIS INFORMATION TO THE ATTORNEY GENERAL; AND TO EXEMPT FROM THE REQUIREMENTS OF THIS ACT REGISTERED NURSES, LICENSED PRACTICAL NURSES, AND NURSING ASSISTANTS EMPLOYED IN A HOSPITAL, NURSING HOME, RESIDENTIAL CARE FACILITY, OR HOME HEALTH AGENCY ON THIS ACT'S EFFECTIVE DATE AND TO REQUIRE COMPLIANCE IF SUBSEQUENTLY THE PERSON IS NOT EMPLOYED BY ONE OF THESE FACILITIES OR AGENCIES FOR ONE YEAR.

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 44-7-3310.    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, as provided for in Section 16-3-654;

        (c)    criminal domestic violence, as provided for in Section 16-25-20;

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

        (e)    unlawful neglect of child or helpless person by legal custodian, as provided for in Section 20-7-50;

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

        (g)    abuse of incapacitated persons, as provided for in Section 43-29-41;

        (h)    abuse or physical or mental injury to client or patient, as provided for in Section 43-30-100;

        ( i)    administering or attempting to administer poison, as provided for in Section 16-3-70;

        ( j)    unlawful and malicious tampering with human drug product or food, as provided for in Section 16-2-75; or

        (k)    a criminal offense similar in nature to the crimes enumerated in this item committed in other jurisdictions 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 contendre was entered to the charge;

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

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

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

    (4)    'Department' means the Department of Health and Environmental Control;

    (5)    'Employment applicant' or 'applicant' means a person seeking employment by a nursing home or home health care agency after June 30, 2001.

    (6)    'Hospital' means a facility organized and administered to provide overnight medical or surgical care or nursing care of illness, injury, or infirmity and may provide obstetrical care and in which diagnoses, treatment, or care is administered by or under the direction of persons currently licensed to practice medicine, surgery, or osteopathy.

    (7)    '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.

    (8)    'Home health 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.

    (9)    'Residential care facility' means a facility which offers room and board and provides a degree of personal assistance for two or more persons eighteen years old or older.

    Section 44-7-3320.    It is unlawful for a hospital, nursing home, residential care facility, or home health care agency to employ an individual if that person has been convicted of a crime as defined in Section 44-7-3310.

    Section 44-7-3330.    An employment applicant whose criminal history check indicates a criminal record may request that the facility or home health agency obtain a fingerprint-based criminal background check by submitting any necessary fees and information in a form and manner prescribed by the State Law Enforcement Division within thirty days after the criminal history report is received by the facility or home health care agency. The fee for a fingerprint-based record check may not exceed the actual cost of conducting the record check. The applicant has a right to obtain a copy of the report.

    Section 44-7-3340.    (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 hospital, nursing home, residential care facility, or home health care agency, has 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 hospital, nursing home, residential care facility, 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.    The 1976 Code is amended by adding:

    "Section 44-6-110.    (A)    Before issuing an individual certification as a nursing assistant, the individual must undergo a criminal history check conducted by the State Law Enforcement Division.

    (B)    Before granting reciprocity to a nursing assistant the applicant must submit a criminal history check which must be conducted by the Federal Bureau of Investigation if the nursing assistant has not lived in this State the preceding twelve months."

SECTION    3.    Section 40-33-530 of the 1976 Code, as last amended by Act 114 of 1987, is further amended to read:

    "Section 40-33-530.    Each applicant shall furnish evidence satisfactory to the board that he is at least eighteen years of age, has completed at least four years of work in a high school accredited by the State Board of Education in the state in which the school is located or the equivalent of such work, satisfactory evidence of which must be furnished to the board, has completed a course of study in an approved nursing education program, has undergone a criminal history check provided for in Article 27, Chapter 7, Title 44, and has met other preliminary qualification requirements as the board may prescribe. The board may deny licensure based on evidence of unlawful acts, incompetence, unprofessional conduct, or other misconduct."

SECTION    4.    Section 40-33-560 of the 1976 Code, as last amended by Act 114 of 1987, is further amended to read:

    "Section 40-33-560.    The board shall issue licenses without examination to nurses licensed in other states, territories, the District of Columbia, or foreign countries, if the individual qualifications of the nurse meet the requirements of this chapter and the board, the nurse has submitted a criminal history check, which must have been conducted by the Federal Bureau of Investigation if the nurse has not lived in South Carolina the proceeding twelve months, and the required fee is paid. The board may deny licensure based on evidence of unlawful acts, incompetence, unprofessional conduct, or other misconduct."

SECTION    5.    Section 40-33-730 of the 1976 Code, as last amended by Act 114 of 1987, is further amended to read:

    "Section 40-33-730.    Each applicant for a license to practice as a licensed practical nurse shall submit evidence satisfactory to the board that he is at least eighteen years of age, has successfully completed at least two years of work in an accredited high school or the equivalent of such work, satisfactory evidence of which must be furnished to the board, has successfully completed the course of study in a nursing education program for practical nurses approved by the board, or has completed a course of study determined by the board to be the equivalent thereof, has undergone a criminal history check as provided for in Article 27, Chapter 7, Title 44, and has met such other preliminary qualification requirements as the board may prescribe. The board may deny licensure based on evidence of unlawful acts, incompetence, unprofessional conduct, or other misconduct."

SECTION    6.    Section 40-33-760 of the 1976 Code, as last amended by Act 114 of 1987, is further amended to read:

    "Section 40-33-760.    The board may issue a license to practice as a licensed practical nurse without examination to any applicant who is a licensed practical nurse or a person entitled to perform similar services under a different title under the laws of another state or territory, the District of Columbia, or a foreign country if, in the opinion of the board, the applicant meets the requirements for licensed practical nurses in this State and the nurse has submitted a criminal history check which must have been conducted by the Federal Bureau of Investigation if the nurse has not lived in South Carolina the preceding twelve months. Each applicant shall pay to the board such fee as it may determine. The board may deny licensure based on evidence of unlawful acts, incompetence, unprofessional conduct, or other misconduct."

SECTION    7.    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    8.    Notwithstanding Article 27, Chapter 7, Title 44 of the 1976 Code, as added by Section 1 of this act, a registered nurse, licensed practical nurse, or a certified nursing assistant who is employed by a hospital, nursing home, residential care facility, or home health care agency on July 1, 2001, is not required to undergo a criminal history check as otherwise required by this act. However, after July 1, 2001, if a person exempt from the criminal background check pursuant to this section is not employed by a hospital, nursing home, residential care facility, or home health care agency for one year or longer, the person must complete all requirements of Section 1 of this act.

SECTION    9.    This act takes effect July 1, 2001.