GENERAL ASSEMBLY OF NORTH CAROLINA
SESSION 2005
SESSION LAW 2005-4
SENATE BILL 41
AN ACT TO MAKE CHANGES TO THE PROCEDURE FOR CONDUCTING NATIONAL CRIMINAL HISTORY RECORD CHECKS FOR LONG‑TERM CARE FACILITIES TO CONFORM WITH FEDERAL REQUIREMENTS, AS RECOMMENDED BY THE NORTH CAROLINA STUDY COMMISSION ON AGING, and to make other conforming changes.
The General Assembly of North Carolina enacts:
SECTION 1. G.S. 122C‑80(a) reads as rewritten:
"(a) Definition. – As used in this section, "area
authority" means an area mental health, developmental disabilities, and
substance abuse services area authority, including a contract agency of an area
authority that is subject to the provisions of Article 4 of this Chapter.the
term "provider" applies to an area authority/county program and any provider
of mental health, developmental disability, and substance abuse services that is
licensable under Article 2 of this Chapter."
SECTION 2. G.S. 122C‑80(b) reads as rewritten:
"(b) Requirement. – An offer of employment by an
area authority a provider licensed under this Chapter to an
applicant to fill a position that does not require the applicant to have an
occupational license is conditioned on consent to a State and national criminal
history record check of the applicant. If the applicant has been a resident of
this State for less than five years, then the offer of employment is
conditioned on consent to a State and national criminal history record check of
the applicant. The national criminal history record check shall include a check
of the applicant's fingerprints. If the applicant has been a resident of this
State for five years or more, then the offer is conditioned on consent to a
State criminal history record check of the applicant. An area authorityA
provider shall not employ an applicant who refuses to consent to a criminal
history record check required by this section. Except as otherwise provided in
this subsection, within five business days of making the conditional offer of
employment, an area authoritya provider shall submit a request to
the Department of Justice under G.S. 114‑19.10 to conduct a criminal
history record check required by this section. 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
to the Department of Health and Human Services, Division of Facility
Services. Criminal Records Check Unit. Within five business days of
receipt of the national criminal history of the person, the Department of
Health and Human Services, Division of Facility Services,Criminal
Records Check Unit, shall provide to the area authority the
results of the national criminal history check.notify the provider as to
whether the information received may affect the employability of the applicant.
In no case shall the results of the national criminal history record check be
shared with the provider. Area authoritiesProviders shall
make available upon request verification that a criminal history check has been
completed on any staff covered by this section. A county that has adopted an
appropriate local ordinance and has access to the Division of Criminal
Information data bank may conduct on behalf of an area authoritya
provider a State criminal history record check required by this section
without the area authorityprovider having to submit a request to
the Department of Justice. In such a case, the county shall commence with the
State criminal history record check required by this section within five
business days of the conditional offer of employment by the area authority.provider.
All criminal history information received by the area authorityprovider
is confidential and may not be disclosed, except to the applicant as provided
in subsection (c) of this section."
SECTION 3. G.S. 122C‑80(c) reads as rewritten:
"(c) Action. – If an applicant's criminal history
record check reveals one or more convictions of a relevant offense, the area
authority provider shall consider all of the following factors in
determining whether to hire the applicant:
(1) The level and seriousness of the crime.
(2) The date of the crime.
(3) The age of the person at the time of the conviction.
(4) The circumstances surrounding the commission of the crime, if known.
(5) The nexus between the criminal conduct of the person and the job duties of the position to be filled.
(6) The prison, jail, probation, parole, rehabilitation, and employment records of the person since the date the crime was committed.
(7) The subsequent commission by the person of a relevant offense.
The fact of conviction of a relevant offense alone shall not
be a bar to employment; however, the listed factors shall be considered by the area
authority. provider. If the area authority provider
disqualifies an applicant after consideration of the relevant factors, then the
area authority provider may disclose information contained in the
criminal history record check that is relevant to the disqualification, but may
not provide a copy of the criminal history record check to the applicant."
SECTION 4. G.S. 122C‑80(d) reads as rewritten:
"(d) Limited Immunity. – An area authority
A provider and an officer or employee of an area authority a
provider that, in good faith, complies with this section shall be immune
from civil liability for:
(1) The failure of the area authority provider
to employ an individual on the basis of information provided in the criminal
history record check of the individual.
(2) Failure to check an employee's history of criminal offenses if the employee's criminal history record check is requested and received in compliance with this section."
SECTION 5.(a) G.S. 122C‑80(g) reads as rewritten:
"(g) Conditional Employment. – An area authority
A provider may employ an applicant conditionally prior to obtaining the
results of a criminal history record check regarding the applicant if both of
the following requirements are met:
(1) The area authority provider shall not
employ an applicant prior to obtaining the applicant's consent for criminal
history record check as required in subsection (b) of this section or the
completed fingerprint cards as required in G.S. 114‑19.10.
(2) The area authority provider shall
submit the request for a criminal history record check not later than five
business days after the individual begins conditional employment."
SECTION 5.(b) G.S. 114‑19.10 reads as rewritten:
"§ 114‑19.10.
Criminal record checks for adult care homes, nursing homes, home care agencies,
and area mental health, developmental disabilities, and substance abuse
services authorities.providers of mental health, developmental
disabilities, and substance abuse services.
The Department of Justice may provide to the following entities the criminal history from the State and National Repositories of Criminal Histories:
(1) Nursing homes or combination homes licensed under Chapter 131E of the General Statutes.
(2) Adult care homes licensed under Chapter 131D of the General Statutes.
(3) Home care agencies licensed under Chapter 131E of the General Statutes.
(4) Area mental health, developmental disabilities,
and substance abuse services authorities Providers licensed under
Chapter 122C of the General Statutes, including a contract agency of an area
authority a provider that is subject to the provisions of Article 4
of that Chapter.
The criminal history shall be provided to nursing homes and
home care agencies in accordance with G.S. 131E‑265, to adult care
homes in accordance with G.S. 131D‑40, and to area mental health,
developmental disabilities, and substance abuse services authorities a
provider in accordance with G.S. 122C‑80. The requesting entity
shall provide to the Department of Justice, along with the request, the
fingerprints of the individual to be checked if a national criminal history
record check is required, any additional information required by the Department
of Justice, and a form signed by the individual to be checked consenting to the
check of the criminal record and to the use of fingerprints and other
identifying information required by the State or National Repositories of
Criminal Histories. If a national criminal history record check is required,
the fingerprints of the individual shall be forwarded to the State Bureau of
Investigation for a search of the State's criminal history record file, and the
State Bureau of Investigation shall forward a set of fingerprints to the Federal
Bureau of Investigation for a national criminal history record check. All
information received by the entity shall be kept confidential in accordance
with G.S. 131E‑265, 131D‑40, and 122C‑80, as applicable.
The Department of Justice shall charge a reasonable fee for conducting the
checks authorized by this section. The fee for the State check may not exceed
fourteen dollars ($14.00)."
SECTION 6. G.S. 131D‑40(a) reads as rewritten:
"(a) Requirement; Adult Care Home. – An offer of
employment by an adult care home licensed under this Chapter to an applicant to
fill a position that does not require the applicant to have an occupational
license is conditioned on consent to a criminal history record check of the
applicant. If the applicant has been a resident of this State for less than
five years, then the offer of employment is conditioned on consent to a State
and national criminal history record check of the applicant. The national
criminal history record check shall include a check of the applicant's fingerprints.
If the applicant has been a resident of this State for five years or more, then
the offer is conditioned on consent to a State criminal history record check of
the applicant. An adult care home shall not employ an applicant who refuses to
consent to a criminal history record check required by this section. Within
five business days of making the conditional offer of employment, an adult care
home shall submit a request to the Department of Justice under G.S. 114‑19.10
to conduct a State or national criminal history record check required by this
section, or shall submit a request to a private entity to conduct a State
criminal history record check required by this section. 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 to the Department of Health and Human Services, Division
of Facility Services.Criminal Records Check Unit. Within five
business days of receipt of the national criminal history of the person, the
Department of Health and Human Services, Division of Facility Services,
Criminal Records Check Unit, shall provide to notify the
adult care home the results of the national criminal history check.
as to whether the information received may affect the employability of the
applicant. In no case shall the results of the national criminal history record
check be shared with the adult care home. Adult care homes shall make
available upon request verification that a criminal history check has been
completed on any staff covered by this section. All criminal history
information received by the home is confidential and may not be disclosed,
except to the applicant as provided in subsection (b) of this section."
SECTION 7. G.S. 131D‑40(a1) reads as rewritten:
"(a1) Requirement; Contract Agency of Adult Care
Home. – An offer of employment by a contract agency of an adult care home
licensed under this Chapter to an applicant to fill a position that does not
require the applicant to have an occupational license is conditioned upon
consent to a criminal history record check of the applicant. If the applicant
has been a resident of this State for less than five years, then the offer of
employment is conditioned on consent to a State and national criminal history
record check of the applicant. The national criminal history record check shall
include a check of the applicant's fingerprints. If the applicant has been a
resident of this State for five years or more, then the offer is conditioned on
consent to a State criminal history record check of the applicant. A contract
agency of an adult care home shall not employ an applicant who refuses to
consent to a criminal history record check required by this section. Within
five business days of making the conditional offer of employment, a contract
agency of an adult care home shall submit a request to the Department of
Justice under G.S. 114‑19.10 to conduct a State or national criminal
history record check required by this section, or shall submit a request to a
private entity to conduct a State criminal history record check required by
this section. 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 to the Department
of Health and Human Services, Division of Facility Services.Criminal
Records Check Unit. Within five business days of receipt of the national
criminal history of the person, the Department of Health and Human Services, Division
of Facility Services, Criminal Records Check Unit, shall provide
to notify the contract agency of the adult care home the results
of the national criminal history check. as to whether the information
received may affect the employability of the applicant. In no case shall the
results of the national criminal history record check be shared with the
contract agency of the adult care home. Contract agencies of adult care
homes shall make available upon request verification that a criminal history
check has been completed on any staff covered by this section. All criminal
history information received by the contract agency is confidential and may not
be disclosed, except to the applicant as provided by subsection (b) of this
section."
SECTION 8. G.S. 131E‑265(a) reads as rewritten:
"(a) Requirement; Nursing Home or Home Care Agency.
– An offer of employment by a nursing home licensed under this Chapter to an
applicant to fill a position that does not require the applicant to have an
occupational license is conditioned on consent to a criminal history record
check of the applicant. If the applicant has been a resident of this State for
less than five years, then the offer of employment is conditioned on consent to
a State and national criminal history record check of the applicant. The
national criminal history record check shall include a check of the applicant's
fingerprints. If the applicant has been a resident of this State for five years
or more, then the offer is conditioned on consent to a State criminal history
record check of the applicant. An offer of employment by a home care agency
licensed under this Chapter to an applicant to fill a position that requires
entering the patient's home is conditioned on consent to a criminal history
record check of the applicant. In addition, employment status change of a
current employee of a home care agency licensed under this Chapter from a
position that does not require entering the patient's home to a position that
requires entering the patient's home shall be conditioned on consent to a
criminal history record check of that current employee. If the applicant for
employment or if the current employee who is changing employment status has
been a resident of this State for less than five years, then the offer of
employment or change in employment status is conditioned on consent to a State
and national criminal history record check. The national criminal history
record check shall include a check of the applicant's or current employee's
fingerprints. If the applicant or current employee has been a resident of this
State for five years or more, then the offer is conditioned on consent to a
State criminal history record check of the applicant or current employee
applying for a change in employment status. A nursing home or a home care
agency shall not employ an applicant who refuses to consent to a criminal
history record check required by this section. In addition, a home care agency
shall not change a current employee's employment status from a position that
does not require entering the patient's home to a position that requires
entering the patient's home who refuses to consent to a criminal history record
check required by this section. Within five business days of making the conditional
offer of employment, a nursing home or home care agency shall submit a request
to the Department of Justice under G.S. 114.19.10 to conduct a State or
national criminal history record check required by this section, or shall
submit a request to a private entity to conduct a State criminal history record
check required by this section. 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
to the Department of Health and Human Services, Division of Facility
Services.Criminal Records Check Unit. Within five business days of
receipt of the national criminal history of the person, the Department of
Health and Human Services, Division of Facility Services,Criminal
Records Check Unit, shall provide to notify the nursing home
or home care agency the results of the national criminal history check.as
to whether the information received may affect the employability of the
applicant. In no case shall the results of the national criminal history record
check be shared with the nursing home or home care agency. Nursing homes
and home care agencies shall make available upon request verification that a
criminal history check has been completed on any staff covered by this section.
All criminal history information received by the home or agency is confidential
and may not be disclosed, except to the applicant as provided in subsection (b)
of this section."
SECTION 9. G.S. 131E‑265(a1) reads as rewritten:
"(a1) Requirement; Contract Agency of Nursing Home or
Home Care Agency. – An offer of employment by a contract agency of a nursing
home or home care agency licensed under this Chapter to an applicant to fill a
position that does not require the applicant to have an occupational license is
conditioned upon consent to a criminal history record check of the applicant.
If the applicant has been a resident of this State for less than five years,
then the offer of employment is conditioned on consent to a State and national
criminal history record check of the applicant. The national criminal history
record check shall include a check of the applicant's fingerprints. If the
applicant has been a resident of this State for five years or more, then the
offer is conditioned on consent to a State criminal history record check of the
applicant. A contract agency of a nursing home or home care agency shall not
employ an applicant who refuses to consent to a criminal history record check
required by this section. Within five business days of making the conditional
offer of employment, a contract agency of a nursing home or home care agency
shall submit a request to the Department of Justice under G.S. 114‑19.10
to conduct a State or national criminal history record check required by this
section, or shall submit a request to a private entity to conduct a State
criminal history record check required by this section. 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 to the Department of Health and Human Services, Division
of Facility Services. Criminal Records Check Unit. Within five
business days of receipt of the national criminal history of the person, the
Department of Health and Human Services, Division of Facility Services,
Criminal Records Check Unit, shall provide to notify the
contract agency of the nursing home or home care agency the results of the
national criminal history check. as to whether the information received
may affect the employability of the applicant. In no case shall the results of
the national criminal history record check be shared with the contract agency
of the nursing home or home care agency. Contract agencies of nursing homes
and home care agencies shall make available upon request verification that a
criminal history check has been completed on any staff covered by this section.
All criminal history information received by the contract agency is confidential
and may not be disclosed, except to the applicant as provided by subsection (b)
of this section."
SECTION 10. This act is effective when it becomes law.
In the General Assembly read three times and ratified this the 16th day of March, 2005.
s/ Beverly E. Perdue
President of the Senate
s/ James B. Black
Speaker of the House of Representatives
s/ Michael F. Easley
Governor
Approved 7:20 p.m. this 23rd day of March, 2005