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SENATE BILL NO. 403
INTRODUCED BY S. STANG
A BILL FOR AN ACT ENTITLED: "AN ACT
REQUIRING AUTHORIZING EMPLOYERS WHO PROVIDE
IN-HOME CARE SERVICES THAT ARE PUBLICLY FUNDED TO CONDUCT A CRIMINAL HISTORY
BACKGROUND CHECK ON PROSPECTIVE APPLICANTS SEEKING EMPLOYMENT AS HOME CARE
WORKERS; ALLOWING DISSEMINATION OF CRIMINAL HISTORY RECORD INFORMATION TO EMPLOYERS;
AMENDING SECTION 44-5-302, MCA; PROVIDING A CONTINGENT VOIDNESS PROVISION; AND PROVIDING
EFFECTIVE DATES AND PROHIBITING BACKGROUND CHECKS BASED ON FINGERPRINTS."
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA:
NEW SECTION. Section 1. Purpose. The purpose of [section 2] is to protect the elderly and persons with disabilities
of all ages by
checking AUTHORIZING EMPLOYERS TO CHECK the criminal history of applicants seeking employment
as home care workers in order to determine their fitness as it pertains to public health, safety, and welfare. The safety of
vulnerable individuals who are dependent on in-home care services will be improved by requiring AUTHORIZING
criminal history background checks on prospective employees before being hired through a company or organization whose
services are partially or totally publicly funded by the senior and long term care division of the department. Private parties
whose services are paid entirely by the client are also encouraged to perform criminal history background checks.
NEW SECTION. Section 2. Criminal background checks for home care worker applicants. (1) An employer who
provides in-home care services
that are publicly funded by the senior and long term care division of the department shall
MAY request a criminal history background check on every applicant being considered for employment ANY JOB
APPLICANT TO WHOM THE EMPLOYER IS CONSIDERING OFFERING A POSITION as a home care worker. A
CRIMINAL HISTORY BACKGROUND CHECK MAY NOT INCLUDE A BACKGROUND CHECK OF NATIONAL
CRIMINAL HISTORY RECORDS BASED ON FINGERPRINTS SUBMITTED BY THE APPLICANT TO THE
FEDERAL BUREAU OF INVESTIGATION.
(2) An application for employment must include a place for an applicant to provide criminal history information and
must inform the applicant
of the requirement for THAT a criminal history background check MAY BE CONDUCTED. (3) Any employer that provides in-home care services that are the same as those funded by the senior and long term care
division of the department that are not publicly funded may conduct a criminal history background check on an applicant
seeking employment as a home care worker. (4)(3) The employer shall review the results of the background check, IF ONE IS MADE, to ascertain whether the
applicant is charged with or has been convicted or adjudicated of a crime in order to evaluate the fitness of the applicant for
employment as a home care worker. Conviction of an offense that relates to public health, welfare, and safety as it applies
to employment as a home care worker is sufficient reason to warrant not hiring an applicant. (5)(4) An employer may perform a criminal history background check on an employee every 24 months at the
employer's expense. (6)(5) For purposes of this section, the following definitions apply:
(a) "Activities of daily living" means bathing, grooming, transferring, exercise, eating, dressing, medication assistance, toileting, and meal preparation.
(b) "Criminal history background check" means
, at a minimum, receipt of public criminal justice information from the
criminal history record information compiled by the department of justice criminal identification bureau. It may also
include a background check of national criminal history records based on fingerprints submitted by the applicant to the
federal bureau of investigation.
(c) "Habilitation training" means services designed to assist individuals to acquire, retain, and improve the self-help, socialization, and adaptive skills necessary to reside successfully in home and community settings.
(d) "Home care worker" means any person who performs in-home care services or personal care services.
(e) "In-home care services" means services provided in a person's home by other than a professionally licensed person that consist of hands-on physical care, help with activities of daily living and instrumental activities of daily living, habilitation training, and supervision.
(f) "Instrumental activities of daily living" means shopping, housework, laundry, money management, socialization, leisure activities, and supervision.
(g) "Publicly funded" means in-home care services that are partially or totally paid for with funds administered by the
senior and long term care division of the department. (h)(G) "Supervision" means the provision of protective oversight to an individual who is unable to be safely left alone. Section 3. Section 44-5-302, MCA, is amended to read: "44-5-302. Dissemination of criminal history record information that is not public criminal justice information.
(1) Criminal history record information may not be disseminated to agencies other than criminal justice agencies unless: (a) the information is disseminated with the consent or at the request of the individual about whom it relates according
to procedures specified in 44-5-214 and 44-5-215; (b) a district court considers dissemination necessary; (c) the information is disseminated in compliance with 44-5-304; or (d) the agency receiving the information is authorized by law to receive it. (2) The department of justice and other criminal justice agencies may accept fingerprints of from and may provide
available state, multistate, local, federal (to the extent allowed by federal law), and other criminal history record
information to: (a) the state bar for licensing purposes, with respect to applicants for admission to the state bar of Montana and shall,
with respect to a bar admission applicant whose fingerprints are given to the department or agency by the state bar,
exchange available state, multistate, local, federal (to the extent allowed by federal law), and other criminal history record
information with the state bar for licensing purposes; and (b) an employer for the purposes of checking the criminal history of an applicant seeking employment as a home care
worker as provided in [section 2]."
NEW SECTION. Section 3. Codification instruction. [Sections 1 and 2] are intended to be codified as an integral part of Title 50, chapter 1, and the provisions of Title 50, chapter 1, apply to [sections 1 and 2].
NEW SECTION. Section 5. Effective dates. (1) Except as provided in subsection (2), if [LC 1381] is submitted to and
approved by the electorate, [this act] is effective on January 1, 2000. (2) If Constitutional Initiative No. 75, enacting Article VIII, section 17, of the Montana constitution, is declared invalid,
then [this act] is effective on the later date of the determination of invalidity or January 1, 2000. NEW SECTION. Section 6. Contingent voidness. If [LC 1381] is submitted to and is not approved by the electorate,
then [this act] is void.
- END -
Latest Version of SB 403 (SB0403.02)
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