MISSISSIPPI LEGISLATURE

1997 Regular Session

To: Public Health and Welfare

By: Representatives Green (72nd), Banks, Bozeman, Straughter

AN ACT TO REQUIRE CRIMINAL HISTORY BACKGROUND CHECKS FOR PROSPECTIVE HEALTH CARE PROVIDER EMPLOYEES; TO PROVIDE FOR THE DISSEMINATION OF CRIMINAL HISTORY INFORMATION AND FOR LIMITATIONS AND EXEMPTIONS ON THE DISSEMINATION OF SUCH INFORMATION; TO PROVIDE THAT THE ATTORNEY GENERAL SHALL BE THE AUTHORIZING AGENCY FOR AUTHORIZATION TO DISSEMINATE INFORMATION; TO PROVIDE THE PROCEDURE TO APPLY FOR AUTHORIZATION TO DISSEMINATE CRIMINAL HISTORY INFORMATION; TO PROVIDE FOR THE SUSPENSION OR TERMINATION OF AUTHORIZATION; TO PROVIDE AUTHORITY FOR THE AUTHORIZING AGENCY TO DEVELOP RULES AND REGULATIONS TO CARRY OUT THE PURPOSES OF THIS ACT; TO ESTABLISH THE PROCEDURE FOR REQUESTING AND PROCESSING INFORMATION; TO AUTHORIZE THE ASSESSMENT OF FEES; TO PROHIBIT REDISSEMINATION OF INFORMATION; TO PROVIDE PENALTIES FOR VIOLATIONS OF THIS ACT; TO PROVIDE EMPLOYER IMMUNITY; AND FOR RELATED PURPOSES.  

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:

SECTION 1. This act shall be known and may be cited as the "Health Care Providers Criminal History Record Information Act."

SECTION 2. As used in this act, the following words and phrases have the meanings indicated unless the context clearly indicates otherwise:

(a) "Authorized employer representative" means the chief executive officer or chief staff member of an employer who has been authorized by the authorizing agency to receive on behalf of the employer criminal history record information about present and prospective employees of the employer.

(b) "Authorizing agency" means the Office of the Attorney General, which reviews, approves or disapproves applications from employer representatives for authorization to receive criminal history record information.

(c) "Responding agency" means the Mississippi Highway Safety Patrol or any local law enforcement agency, which responds to requests from authorized employer representatives for criminal history record information.

(d) "Disposition" means an official determination indefinitely postponing or terminating further action in a criminal proceeding or an official outcome of a criminal proceeding, including but not limited to acquittal, dismissal of the charge, finding of not guilty or acquittal by reason of insanity, nolle prosequi decision, pretrial diversion decision, appeal, or a determination of guilt based on a conviction, guilty plea, or plea of nolo contendere; any sentence imposed in connection with such determination; and any grant of executive clemency or pardon.

(e) "Employee" means a person who renders time and services as a health care provider to an employer, and whose regular course of duties places that person in a position:

(i) To exercise security control over a place of business or governmental entity hiring a health care provider; or

(ii) To have direct access to or contact with clients served by the employer; or

(iii) To have access to information and records maintained by the employer relating to clients served by the employer.

For the purposes of this chapter, "employee" includes any volunteer, any prospective employee, and any prospective volunteer.

(f) "Employer" shall means a business, nonprofit or volunteer organization, a unit of such business or organization, or a unit of government not responsible for law enforcement whose employees regularly render health care services.

(g) "Employer representative" means the chief executive officer or chief staff member of an employer who applies to the authorizing agency for authorization to receive on behalf of the employer criminal history record information about present and prospective employees of the employer.

SECTION 3. Before any employer may employ any person seeking employment as a health care provider employee, the employer shall obtain criminal history record information about the prospective employee under the provisions of this act.

SECTION 4. (1) Criminal history record information authorized for dissemination under the terms of this act shall be disseminated to authorized employers subject to the limitations contained in this act.

(2) This act permits an employer to consider an employee's criminal history record when making a decision to hire, retain, suspend or discharge the employee.

(3) This act shall not be construed to restrict the release of criminal history record information authorized by other statutes. Conflicts that arise between this act and other statutes shall be resolved in favor of the statute that authorizes maximum disclosure of information.

(4) Except as provided in subsection (5)(e) of this section, this act exempts criminal offenses from laws of this state or court orders authorizing the destroying, expunging, purging or sealing of criminal history records to the extent that such information is authorized for dissemination under this act.

(5) This act applies to criminal history record information required by law to be kept by law enforcement agencies. The following are excluded from the provisions of this act:

(a) Information pertaining to law enforcement agencies' intelligence gathering activities and to other on-going criminal investigations, if requested by a law enforcement agency to be excluded;

(b) Information obtained from a criminal justice agency report or other investigation report;

(c) False or fictitious criminal history information intentionally fabricated and included in criminal history record files where such information is for use in an on-going undercover criminal investigation;

(d) Information for statistical or research purposes in which individuals are not identified and from which individual identities cannot be ascertained; and

(e) Juvenile criminal history record information that has been sealed by order of the court.

SECTION 5. (1) The authorizing agency is authorized to approve or deny employer representatives' requests for authorization to receive criminal history record information.

(2) Responding agencies authorized to disseminate criminal history record information to employers authorized to receive such information.

(3) The authorizing agency may employ personnel necessary to carry out the purposes of this act.

(4) The authorizing agency is authorized to enter into compacts with other states for the reciprocal exchange of criminal history information to further the purposes of this act.

SECTION 6. (1) Criminal history record information about employees seeking employment as a health care provider may be disseminated under this act only to employer representatives to whom the authorizing agency has granted prior authorization to receive criminal history record information.

(2) An employer representative applying for authorization to receive criminal history record information about employees shall provide to the authorizing agency:

(a) A plan for safeguarding any information obtained under this act and for destruction of such information within thirty (30) days of its receipt;

(b) Agreement that if authorization is granted, the employer representative will update the material information provided in the application throughout the period of authorization; and

(c) Such other information about the employer representative, the employer and the employer's facilities that is necessary and proper for implementation of this act and requested by the authorizing agency.

(3) The authorizing agency shall process applications for authorization to receive criminal history record information. The process shall include conducting such investigations as may be deemed necessary to verify information provided by the employer representative.

(4) The authorizing agency shall provide authorization to receive criminal history record information to any employer representative whose application conforms to the requirements under subsection (2) of this section unless the authorizing agency determines that the employer representative:

(a) Does not represent an employer as defined in this act; or

(b) Has provided materially false information.

(5) If the authorizing agency approves the application of the employer representative, it shall provide timely written notice of the authorization to the employer representative. Such notice shall include any limitations on the authorization.

(6) If the authorizing agency finds that the employer representative is not eligible for authorization under subsection (4) of this section, the authorizing agency shall return the application to the employer representative with written reasons for its disapproval, and provide the employer representative an opportunity to resubmit the application with any additional information as reasonably may be required by the authorizing agency.

(7) Authorization to receive criminal history record information shall be in effect for five (5) years from the date of authorization. However, the authorizing agency may suspend or terminate authorization before its original expiration date if:

(a) The authorized employer representative fails to provide the authorizing agency with timely written notice of material changes in the information furnished under subsection (2) of this section;

(b) Material changes in the information furnished under subsection (2) of this section are of such a nature that the employer representative is no longer eligible for authorization under subsection (4) of this section; or

(c) The authorized employer representative or the employer has violated the provisions of this act. If the authorizing agency has probable cause to believe an employer has violated this act, it may suspend the authorization pending a determination that the alleged violation warrants further suspension or termination of the authorization.

(8) If the authorizing agency suspends or terminates authorization of an authorized employer representative, it shall immediately provide written notice of this action to the employer representative, the Mississippi Highway Safety Patrol and all sheriff's departments and municipal police departments within the State of Mississippi.

(9) To implement this section, the authorizing agency shall develop rules and regulations governing authorization of employer representatives to receive criminal history record information about employees, including:

(a) Application procedures and requirements;

(b) Procedures for reviewing applications;

(c) Limitations on authorization;

(d) Procedures for suspending, terminating and renewing authorization;

(e) Procedures for employer representatives to appeal the denial or revocation of authorization;

(f) The setting of fee schedules to cover the actual costs of initial authorization and to cover the actual costs of renewed authorization; and

(g) Procedures to assure compliance with the provisions of this section and the rules and regulations governing it.

SECTION 7. (1) An authorized employer representative may request criminal history record information about any employee of the employer, provided the employee is within the scope of the authorization granted to the employer representative, from the sheriff's offices and the municipal police departments of any counties and municipalities in the state. The employer representative may also request any available information from the Mississippi Highway Safety Patrol and the request shall be granted to the extent that the dissemination of the information does not conflict with state or federal regulations.

(2) A responding agency shall process requests from authorized employer representatives for criminal history record information about specified employees, if such requests include:

(a) The name, address and signature of the authorized employer representative and the name and address of the employer;

(b) The name and address of the employer's facility in which the employee is employed or seeking to become employed;

(c) The name and other identifying information about the employee;

(d) Signed consent by the employee to a criminal history record information search;

(e) The mailing address of the employee; and

(f) Signature of the employee indicating that the employee has been notified of:

(i) The types of criminal history record information subject to dissemination under subsection (4) of this section or a description of such information;

(ii) The employer's right to require a record check as a condition of employment;

(iii) The employee's right to challenge the accuracy and completeness of any information that may be disseminated to the employer under this act;

(g) A copy of the employer's authorization by the authorizing agency.

(3) Upon receipt of a request from an authorized employer representative for criminal history record information about an employee, the responding agency shall undertake a search for such information if the employee is not outside the scope of the employer authorization. The search shall be based on the identifying information provided by the authorized employer representative and shall include:

(a) Identifying criminal history record information about the employee that may exist in the records of the responding agency;

(b) If the information pertains to an arrest reported more than thirty (30) days before to the date of the inquiry and no disposition has been reported, contacting appropriate officials in the local jurisdiction where the arrest or prosecution occurred to verify and update the information; and

(c) Determining whether the criminal history record information is subject to dissemination under subsection (4) of this section.

(4) Criminal history record information about an employee shall be disseminated to an authorized employer representative who has requested it in accordance with the following provisions:

(a) If the record check indicates a conviction for a criminal offense or a conviction based on an arrest or on an initial charge for a criminal offense, all criminal history record information about the incident shall be released;

(b) If the record check indicates an arrest for a criminal offense pending at the time of the inquiry or an initial charge for a criminal offense pending at the time of the inquiry, all criminal history record information shall be released; or

(c) If the record check indicates two (2) or more incidents resulting in arrest or initial charge for a criminal offense, all criminal history record information shall be released.

(5) Within ten (10) days of receipt of a request by an authorized employer representative for criminal history record information, the responding agency shall send written notice of the results of the search to the authorized employer representative and to the employee. The notice shall include:

(a) A description of criminal history information subject to dissemination under subsection (4) of this section; and

(b) If the search for criminal history record information revealed no information subject to release under this act, a statement that the responding agency has no information subject to release under the act; or

(c) If the search for criminal history record information revealed information about the employee subject to release under this act, a summary of the information and, if applicable, a statement that disposition information could not be verified for certain noted arrests. A statement of the purpose for which the information is being disseminated, the potential liabilities and penalties for its misuse, and the procedures by which the employee might challenge the accuracy and completeness of the information shall be included with any criminal history record information disseminated.

(6) Immediately upon receipt of corrected or updated information disseminated under subsection (5)(c) of this section, the responding agency shall send written notice of the correction or updated information to the employee who was the subject of the record search, and to all employer representatives to whom notice of the results of the criminal history record search under subsection (5)(c) of this section were disseminated within the three (3) months before the correction and, upon request of the employee, to any other employer representatives who previously received such information.

(7) The responding agency may charge reasonable fees to cover the actual costs of a criminal history record search.

SECTION 8. Under no circumstances shall an employer or any individual other than the subject of the record check redisseminate criminal history record information received under this act except to the extent required to fulfill the purposes of this act.

SECTION 9. (1) It shall be unlawful for any person knowingly and willfully to:

(a) Use this act to obtain or seek to obtain criminal history record information under false pretenses;

(b) Disseminate or attempt to disseminate information received under this act, knowing that such information was received under this act, in a manner other than in accordance with this act; or

(c) Disseminate or attempt to disseminate false, inaccurate or incomplete criminal history record information under this act.

(2) Each violation of this section constitutes a separate offense, and is a felony, punishable upon conviction by a fine not to exceed Five Thousand Dollars ($5,000.00), or imprisonment in the State Penitentiary for a term not to exceed five (5) years, or both.

SECTION 10. An authorized employer shall be held harmless in any employment discrimination suit claiming discrimination based on the provisions of this act.

SECTION 11. If any part of this act is declared invalid or unconstitutional, such declaration shall not affect the remaining provisions of this act.

SECTION 12. This act shall take effect and be in force from and after July 1, 1997.