Sec. 19a-491c. Criminal history and patient abuse background search program. Regulations.

(a) As used in this section:

(1) “Criminal history and patient abuse background search” or “background search” means (A) a review of the registry of nurse's aides maintained by the Department of Public Health pursuant to section 20-102bb, (B) checks of state and national criminal history records conducted in accordance with section 29-17a, and (C) a review of any other registry specified by the Department of Public Health which the department deems necessary for the administration of a background search program.

(2) “Direct access” means physical access to a patient or resident of a long-term care facility that affords an individual with the opportunity to commit abuse or neglect against or misappropriate the property of a patient or resident.

(3) “Disqualifying offense” means a conviction of any crime described in 42 USC 1320a-7(a)(1), (2), (3) or (4) or a substantiated finding of neglect, abuse or misappropriation of property by a state or federal agency pursuant to an investigation conducted in accordance with 42 USC 1395i-3(g)(1)(C) or 42 USC 1396r(g)(1)(C).

(4) “Long-term care facility” means any facility, agency or provider that is a nursing home, as defined in section 19a-521, a residential care home, as defined in section 19a-521, a home health agency, as defined in section 19a-490, an assisted living services agency, as defined in section 19a-490, an intermediate care facility for individuals with intellectual disabilities, as defined in 42 USC 1396d(d), except any such facility operated by a Department of Developmental Services' program subject to background checks pursuant to section 17a-227a, a chronic disease hospital, as defined in section 19a-550, or an agency providing hospice care which is licensed to provide such care by the Department of Public Health or certified to provide such care pursuant to 42 USC 1395x.

(b) The Department of Public Health shall create and implement a criminal history and patient abuse background search program, within available appropriations, in order to facilitate the performance, processing and analysis of the criminal history and patient abuse background search of individuals who have direct access.

(c) (1) Except as provided in subdivision (2) of this subsection, each long-term care facility, prior to extending an offer of employment to, or entering into a contract for, the provision of long-term care services with any individual who will have direct access, or prior to allowing any individual to begin volunteering at such long-term care facility when the long-term care facility reasonably expects such volunteer will regularly perform duties that are substantially similar to those of an employee with direct access, shall require that such individual submit to a background search. The Department of Public Health shall prescribe the manner by which (A) long-term care facilities perform the review of (i) the registry of nurse's aides maintained by the department pursuant to section 20-102bb, and (ii) any other registry specified by the department, including requiring long-term care facilities to report the results of such review to the department, and (B) individuals submit to state and national criminal history records checks, including requiring the Department of Emergency Services and Public Protection to report the results of such checks to the Department of Public Health.

(2) No long-term care facility shall be required to comply with the provisions of this subsection if the individual provides evidence to the long-term care facility that such individual submitted to a background search conducted pursuant to subdivision (1) of this subsection not more than three years immediately preceding the date such individual applies for employment, seeks to enter into a contract or begins volunteering with the long-term care facility and that the prior background search confirmed that the individual did not have a disqualifying offense.

(d) (1) The Department of Public Health shall review all reports provided to the department pursuant to subsection (c) of this section. If any such report contains evidence indicating that an individual has a disqualifying offense, the department shall provide notice to the individual and the long-term care facility indicating the disqualifying offense and providing the individual with the opportunity to file a request for a waiver pursuant to subdivisions (2) and (3) of this subsection.

(2) An individual may file a written request for a waiver with the department not later than thirty days after the date the department mails notice to the individual pursuant to subdivision (1) of this subsection. The department shall mail a written determination indicating whether the department shall grant a waiver pursuant to subdivision (3) of this subsection not later than fifteen business days after the department receives the written request from the individual, except that said time period shall not apply to any request for a waiver in which an individual challenges the accuracy of the information obtained from the background search.

(3) The department may grant a waiver from the provisions of subsection (e) of this section to an individual who identifies mitigating circumstances surrounding the disqualifying offense, including (A) inaccuracy in the information obtained from the background search, (B) lack of a relationship between the disqualifying offense and the position for which the individual has applied, (C) evidence that the individual has pursued or achieved rehabilitation with regard to the disqualifying offense, or (D) that substantial time has elapsed since committing the disqualifying offense. The department and its employees shall be immune from liability, civil or criminal, that might otherwise be incurred or imposed, for good faith conduct in granting waivers pursuant to this subdivision.

(4) After completing a review pursuant to subdivision (1) of this subsection, the department shall notify in writing the long-term care facility to which the individual has applied for employment or with which the individual seeks to enter into a contract or volunteer (A) of any disqualifying offense and any information the individual provided to the department regarding mitigating circumstances surrounding such offense, or of the lack of a disqualifying offense, and (B) whether the department granted a waiver pursuant to subdivision (3) of this subsection.

(e) Notwithstanding the provisions of section 46a-80, no long-term care facility shall employ an individual required to submit to a background search, contract with any such individual to provide long-term care services or allow such individual to volunteer if the long-term care facility receives notice from the department that the individual has a disqualifying offense in the individual's background search and the department has not granted a waiver pursuant to subdivision (3) of subsection (d) of this section. A long-term care facility may, but is not obligated to, employ, enter into a contract with or allow to volunteer an individual who was granted a waiver pursuant to said subdivision (3).

(f) (1) Except as provided in subdivision (2) of this subsection, a long-term care facility shall not employ, enter into a contract with or allow to volunteer any individual required to submit to a background search until the long-term care facility receives notice from the Department of Public Health pursuant to subdivision (4) of subsection (d) of this section.

(2) A long-term care facility may employ, enter into a contract with or allow to volunteer an individual required to submit to a background search on a conditional basis before the long-term care facility receives notice from the department that such individual does not have a disqualifying offense, provided: (A) The employment or contractual or volunteer period on a conditional basis shall last not more than sixty days, except the sixty-day time period may be extended by the department to allow for the filing and consideration of written request for a waiver of a disqualifying offense filed by an individual pursuant to subsection (d) of this section, (B) the long-term care facility has begun the review required under subsection (c) of this section and the individual has submitted to checks pursuant to subsection (c) of this section, (C) the individual is subject to direct, on-site supervision during the course of such conditional employment or contractual or volunteer period, and (D) the individual, in a signed statement (i) affirms that the individual has not committed a disqualifying offense, and (ii) acknowledges that a disqualifying offense reported in the background search required by subsection (c) of this section shall constitute good cause for termination and a long-term care facility may terminate the individual if a disqualifying offense is reported in said background search.

(g) Records and information with respect to any individual that are obtained by the department pursuant to this section shall not be subject to disclosure under section 1-210.

(h) The department shall adopt regulations, in accordance with the provisions of chapter 54, to implement the provisions of this section. The department may implement policies and procedures consistent with the provisions of this section while in the process of adopting such policies and procedures as regulation, provided notice of intention to adopt regulations is printed in the Connecticut Law Journal not later than twenty days after the date of implementation. Such policies and procedures shall be valid until the time final regulations are effective.

(P.A. 11-242, S. 90; P.A. 13-32, S. 14; 13-139, S. 16; 13-208, S. 3, 28; 13-220, S. 23; P.A. 17-146, S. 19; P.A. 18-168, S. 51.)

History: P.A. 11-242 effective January 1, 2012 (Revisor's note: In Subsec. (c)(1)(B), “Department of Public Safety” was changed editorially by the Revisors to “Department of Emergency Services and Public Protection” to conform with changes made by P.A. 11-51); P.A. 13-32 amended Subsec. (b)(2) to replace “Department of Public Safety” with “Department of Emergency Services and Public Protection” and make a technical change, effective July 1, 2013; P.A. 13-139 amended Subsec. (a)(4) to redefine “long-term care facility” by substituting “individuals with intellectual disabilities” for “the mentally retarded”; P.A. 13-208 amended Subsec. (a)(4) to redefine “long-term care facility” by adding reference to residential care home, effective July 1, 2013, and amended Subsec. (c)(1) by adding provision re background search for certain volunteers and making technical changes, effective October 1, 2013; P.A. 13-220 amended Subsec. (b)(2) to replace “Department of Public Safety” with “Department of Emergency Services and Public Protection”, effective June 18, 2013; P.A. 17-146 amended Subsec. (f)(2) by adding provision re extension of sixty-day time period; P.A. 18-168 amended Subsec. (a)(4) by adding exception for facilities operated by Department of Developmental Services' program subject to background checks, amended Subsec. (b) by deleting Subdiv. (1) designator, deleting “On or before July 1, 2012,” and deleting Subdiv. (2) re plan to implement background search program, deleted former Subsec. (g) re phasing in implementation of background search program, added new Subsec. (g) re disclosure of records, and made conforming changes, effective July 1, 2018.