South Carolina General Assembly
114th Session, 2001-2002

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Bill 3145


Indicates Matter Stricken
Indicates New Matter


(Text matches printed bills. Document has been reformatted to meet World Wide Web specifications.)


COMMITTEE REPORT

February 26, 2002

    H. 3145

Introduced by Reps. Lourie, J.E. Smith, Howard, Wilder, Cobb-Hunter, Bales, Barfield, Keegan, Snow, Ott, Sinclair, Walker, Riser, Parks, McLeod, Allison, Koon, Frye, McGee, Martin, Hosey, Clyburn, Gilham, Altman, Meacham-Richardson, Kirsh, J. Hines, Mack, Miller, Cotty, Hamilton, Law, Hinson, Chellis, Harrison, Neilson and Weeks

S. Printed 2/26/02--H.

Read the first time January 9, 2001.

            

THE COMMITTEE ON MEDICAL,

MILITARY, PUBLIC AND MUNICIPAL AFFAIRS

    To whom was referred a Bill (H. 3145) 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 23, etc., respectfully

REPORT:

    That they have duly and carefully considered the same and recommend that the same do pass with amendment:

    Amend the bill, as and if amended, by striking all after the enacting words and inserting:

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

    "Article 23

    Criminal Record Checks

    of Direct Care Staff

        Section 44-7-2910.    (A)    No direct care entity may employ or contract with a direct caregiver until after the direct caregiver has undergone a state criminal history check. However, pending the results of the criminal history check, a person temporarily may be employed or contract as a direct caregiver with a direct care entity. A direct care entity must consider the information revealed by a criminal history check as a factor in evaluating a direct caregiver's application to be employed by or contract with the entity.

    (B)    For purposes of this article:

        (1)    'Direct care entity' means:

            (a)    a nursing home, as defined in Section 44-7-130;

            (b)    a daycare facility for adults, as defined in Section 44-7-130;

            (c)    a home health agency, as defined in Section 44-69-20;

            (d)    a community residential care facility, as defined in Section 44-7-130;

            (2)    'Direct caregiver' or 'caregiver' means:

            (a)    a registered nurse, licensed practical nurse, or certified nurse assistant;

            (b)    any other licensed professional employed by or contracting with a direct care entity who provides to patients or clients direct care or services and includes, but not limited to, a physical, speech, occupational, or respiratory care therapist; or

            (c)    a person who is not licensed but provides physical assistance or care to a patient or client served by a direct care entity.

        Section 44-7-2920.    To be employed by or to contract with a direct care entity as a direct caregiver, a person first shall undergo a state criminal record check to be conducted by the State Law Enforcement Division or by a private business, organization, or association which conducts background checks if that entity utilizes current criminal records obtained from the state law enforcement division to determine any state criminal history. Pending the results of the criminal history check, a person temporarily may be employed or contract with a direct care entity. The results of the criminal history check are valid and are not required to be repeated as long as the person remains employed by or continues to contract with a direct care entity; however, if a person is not employed by or is not under contract for one year or longer with a direct care entity, the criminal history check must be repeated before resuming employment or contracting with a direct care entity.

        Section 44-7-2930.    A direct care entity shall furnish copies of personnel records of current or former direct caregivers to another direct care entity requesting this information. Information contained in the records may include, but is not limited to, disciplinary matters and any reasons for termination. A direct care entity releasing these records pursuant to this section is presumed to be acting in good faith and is immune from civil and criminal liability which otherwise may result by reason of releasing this information."

    SECTION    2.    Notwithstanding Article 23, Chapter 7, Title 44 of the 1976 Code, as added by Section 1 of this act, a person who is employed by or under contract with a direct care entity, as defined in Section 44-7-2910 of the 1976 Code, as added by Section 1 of this act, on July 1, 2002, as a direct caregiver, as defined in Section 44-7-2910, is not required to undergo a state criminal history check. However, after July 1, 2002, if a direct caregiver is not employed by or is not under contract with a direct care entity as a direct caregiver for one year or longer, the person must comply with all requirements of Article 23.

    SECTION    3.    This act takes effect July 1, 2002./

    Renumber sections to conform.

    Amend totals and title to conform.

JOE E. BROWN for Committee.

            

STATEMENT OF ESTIMATED FISCAL IMPACT

ESTIMATED FISCAL IMPACT ON GENERAL FUND EXPENDITURES:

A Cost to the General Fund (See Below)

ESTIMATED FISCAL IMPACT ON FEDERAL & OTHER FUND EXPENDITURES IS:

A Cost of Federal and/or Other Funds (See Below)

FIRST YEAR GENERAL FUNDS: $ 516,509

FIRST YEAR FEDERAL AND/OR OTHER FUNDS: $ 496,860

ANNUAL TOTAL THEREAFTER: $ 1,009,869

Itemization of Additional Cost for First Year

    RECURRING        NON-RECURRING

    General    Federal/Other    General    Federal/Other

Personal Service &

Employer Contrib.    $31,938    $0    $0    $0

    FTE    (1.00)    (0)    (0)    (0)

Operating Costs    325,000    0    0    0

Other:    156,071    496,860    3,500    0

TOTAL    $513,009    $496,860    $3,500    $0

EXPLANATION OF IMPACT:

Department of Health and Human Services (DHHS):

    All payments to Medicaid providers must be based on reasonable cost of services under Title XIX. Reasonable costs are determined in accordance with regulations and take into account both direct and indirect costs. Reasonable costs include all necessary and proper costs which are appropriate in developing and maintaining the operation of patient care facilities and activities. Expenditures related to mandatory background checks would be considered reasonable costs, and, therefore, reimbursable to providers of Medicaid services.

    DHHS states enactment of this bill would result in additional operating expenses for nursing facilities and home health agencies. DHHS estimates that a minimum of 11,000 nursing home applications would be screened annually at a cost of $49 per fingerprint review (SLED @ $25 and FBI @$24). Medicaid represents approximately 74% of the nursing home industry or 8,140 of the 11,000 applications. Therefore, the total cost to the Medicaid program is estimated at $398,860. Additional state general funds needed to cover these costs are estimated at $121,214 based on a 30.39% match rate.

    Total applications covered under the Medicaid program for home health agencies are estimated at a minimum of 2,000 annually for a total cost of $98,000 (2,000 x $49). Additional state matching funds required would be $29,782 based on a 30.39% match rate.

    The total fiscal impact on state general funds for nursing facilties and home health agencies is estimated to be $150, 996. Total federal matching funds would be $496,860.

Department of Disabilities and Special Needs (DDSN):

    DDSN anticipates that any additional costs associated with criminal background checks will be minimal and can be absorbed within the existing budget.

Department of Mental Health (DMH):

    This legislation applies to a minimal number of employees employed directly or by contract to DMH at the Tucker Center and the Campbell Veterans' Center. DMH anticipates that any additional costs associated with criminal background checks will be minimal and can be absorbed within the existing budget.

Department of Health and Environmental Control (DHEC):

    DHEC operates thirteen home health agencies. The cost of conducting fingerprint reviews on employees at these agencies has been included in the estimate provided by the Department of Health and Human Services.

    In addition, DHEC indicates the need for one full-time inspector to investigate complaints and conduct routine licensing inspections. The annual personal service cost, included fringe benefits, is estimated at $31,938. Other operating costs, including travel, are estimated at $5,075 annually. A one-time set-up cost is estimated at $3,500.

South Carolina Law Enforcement Division (SLED):

    SLED estimates it would incur an additional annual cost to the general fund of approximately $325,000 to conduct an additional 13,000 fingerprint reviews. For the fiscal year ending June 30, 2000, SLED conducted approximately 173,000 fingerprint reviews. (This does not include the pass-through cost involving the use of the FBI's database.)

SPECIAL NOTES:

    The Board of Economic Advisors is the appropriate agency to address any revenue impact of this legislation.

    Approved By:

    Don Addy

    Office of State Budget

STATEMENT OF ESTIMATED FISCAL IMPACT

REVENUE IMPACT1

    This bill is expected to increase departmental revenue within the general fund by $212,500 in FY 2002-03.

Explanation

    This bill would require new and non-exempt nursing home/home health agency job applicants to undergo state and federal fingerprint reviews of criminal history as a condition of employment as a 'direct caregiver' in this State. Anyone employed/contracted by these agencies on July 1, 2001 is exempt from the fingerprint check, unless there is a break in employment/contract status of one year or longer after July 1, 2001. The bill also sets a misdemeanor criminal offense for anyone previously convicted of specific crimes to currently work for, or to apply for employment with, these agencies. The bill would take effect July 1, 2001.

    Based on a review of direct caregiver positions in nursing homes and home health firms by relevant state agencies and professional associations, the BEA expects this bill would apply to approximately 8,500 new fingerprint checks annually. Currently, the State Law Enforcement Division (SLED) charges $49 per fingerprint review. Of this amount, $25 is payable to SLED and deposited in the general fund, and $24 is the pass-through cost incurred by SLED to access the national database of the FBI. Multiplying $25 times 8,500 screenings yields $212,500. This bill, therefore, is expected to increase departmental revenue within the general fund by $212,500 in FY 2002-03.

Note: We expect appropriate dates in this bill to be adjusted forward one calendar year.

    Approved By:

    William C. Gillespie

    Board of Economic Advisors

1/ This statement meets the requirement of Section 2-7-71 for a state revenue impact.

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 23 SO AS TO REQUIRE STATE AND FEDERAL CRIMINAL RECORD CHECKS OF DIRECT CAREGIVERS EMPLOYED BY NURSING HOMES AND HOME HEALTH AGENCIES, TO PROVIDE FOR TRANSFER OF INFORMATION AMONG FACILITIES AND AGENCIES, TO PROVIDE PENALTIES, AND TO PROVIDE THAT STATE CHECKS ARE NOT REQUIRED FOR DIRECT CAREGIVERS EMPLOYED ON JULY 1, 2001, UNLESS THEY SUBSEQUENTLY ARE UNEMPLOYED FOR ONE YEAR OR LONGER.

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:

"Article 23

Criminal Record Checks

of Direct Care Staff

    Section 44-7-2910.    (A)    No nursing home defined in Section 44-7-130, or home health agency, as defined in Section 44-69-20, may employ or contract with a direct caregiver if the caregiver has been convicted of:

        (1)    a crime listed in Chapter 3 of Title 16, Offenses Against the Person;

        (2)    a crime listed in Chapter 15 of Title 16, Offenses Against Morality and Decency;

        (3)    the felonies classified in Section 16-1-10(A);

        (4)    the offenses enumerated in Section 16-1-10(D); or

        (5)    a criminal offense similar in nature to the crimes listed in this subsection committed in other jurisdictions or under federal law.

    (B)    For purposes of this article a 'direct caregiver' or caregiver is:

        (1)    a registered nurse, a licensed practical nurse, or a certified nurse assistant;

        (2)    any other licensed professional who provides direct care or services to a patient including, but not limited to, a physical, speech, or occupational therapist; or

        (3)    a person who is not licensed but provides physical assistance or care to a patient.

    Section 44-7-2920.    A person who has been convicted of a crime enumerated in Section 44-7-2910 who applies for employment with, is employed by, seeks to contract with, or contracts with a nursing home or home health agency who provides direct care is guilty of a misdemeanor and, upon conviction, must be fined not more than five thousand dollars or imprisoned not more than one year, or both.

    Section 44-7-2930.    Application forms for employment for caregivers at a nursing home or home health agency must include, at the top of the form in large bold type, a statement indicating that a person who has been convicted of a crime enumerated in Section 44-7-2910 who applies for employment with, is employed by, seeks to contract with, or contracts with a nursing home or home health agency as a direct caregiver is guilty of a misdemeanor and, upon conviction, must be fined not more than five thousand dollars or imprisoned not more than one year, or both.

    Section 44-7-2940.    To be employed by or to contract with a nursing home or home health agency as a direct caregiver, a person first shall undergo a state fingerprint review to be conducted by the State Law Enforcement Division to determine any state criminal history and a fingerprint review to be conducted by the Federal Bureau of Investigation to determine any other criminal history. Pending the results of the fingerprint reviews, a person temporarily may be employed or contract with a nursing home or home health agency. The results of the fingerprint reviews are valid and reviews are not required to be repeated as long as the person remains employed by or continues to contract with a nursing home or home health agency as a caregiver; however, if a person is not employed or is not under contract for one year or longer, the fingerprint reviews must be repeated before resuming employment or contracting with a nursing home or home health agency as a caregiver.

    Section 44-7-2950.    A nursing home or home health agency shall furnish copies of personnel records of current or former direct caregivers to another nursing home or home health agency requesting this information. Information contained in the records may include, but is not limited to, disciplinary matters and any reasons for termination. A nursing home or home health agency releasing these records pursuant to this section is presumed to be acting in good faith and is immune from civil and criminal liability which otherwise may result by reason of releasing this information."

SECTION    2.    Notwithstanding Article 23, Chapter 7, Title 44 of the 1976 Code, as added by Section 1 of this act, a person who is employed by or is contracting with a nursing home as defined in Section 44-7-130 or a home health agency as defined in Section 44-69-20 on July 1, 2001, as a direct caregiver as defined in Section 44-7-2910 is not required to undergo a state fingerprint review conducted by the State Law Enforcement Division or the Federal Bureau of Investigation. However, after July 1, 2001, if a person exempt from the state fingerprint review pursuant to this section is not employed by or does not contract with a nursing home or home health agency as a direct caregiver for one year or longer, the person must comply with all requirements of Article 23.

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

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