A BILL TO BE ENTITLED
AN ACT to provide for the department of health and human services to review criminal history record checks to determine if persons employed in or seeking employment in nursing homes and adult care homes are fit to be responsible for the safety and well‑being of aged or disabled persons residing in the homes; and to provide that individuals determined to be unfit to be responsible for the safety and well‑being of aged or disabled individuals residing in nursing homes or adult care homes may not be employed by the nursing home or adult care home; and to appropriate funds to the department of health and human services to review criminal history record checks to determine fitness for employment in nursing homes and adult care homes.
The General Assembly of North Carolina enacts:
SECTION 1.  G.S. 131D‑40 reads as rewritten:
"§ 131D‑40.  Criminal history record checks required for certain applicants for employment.
(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. At the time of submitting the request for the criminal history record check, the adult care home shall provide a copy of the request to the Department of Health and Human Services, Division of Facility Services. If the adult care home receives the criminal history information from a private entity, then within two business days of receiving the criminal history information, the adult care home shall forward the information to the Department of Health and Human Services, Division of Facility Services, for a determination of the individual's fitness as required 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.
(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. At the time of submitting the request for the criminal history record check, a contract agency of an adult care home shall provide a copy of the request to the Department of Health and Human Services, Division of Facility Services. If the contract agency receives the criminal history information from a private entity, then within two business days of receiving the criminal history information, the contract agency shall forward the information to the Department of Health and Human Services, Division of Facility Services, for a determination of the individual's fitness as required 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.
(b)	Action. – 							
Except as provided in subsection (f) of this section, an adult care home or contract agency of an adult care home shall not employ an individual who is subject to a criminal history record check under this section until the criminal history has been reviewed and a determination made by the Department of Health and Human Services in accordance with this section as to the individual's fitness to be responsible for the safety and well‑being of aged or disabled persons. If an applicant's criminal history shows that the applicant was convicted of an offense listed in subsection (d) of this section, other than homicide or rape and other sex offenses, and the conviction occurred 10 or more years prior to the date of the application, the Department of Health and Human Services shall obtain the public record document reflecting the offense and shall provide the public record of that conviction to the adult care home or contract agency of the adult care home, and the adult care home or contract agency may consider whether or not to hire the applicant after considering all of the following factors: 
(1)	The level and seriousness of the crime.
(2)	The date of the crime.
(3)	The age of the person at the time of 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 conviction by the person of one or more of the offenses listed in subsection (d) of this section, other than homicide or rape or other sex offense.
(8)	Whether the applicant's name is listed in the Health Care Personnel Registry based on findings by the Department of Health and Human Services under G.S. 131E‑256, and the nature of those findings.
If the adult care home or contract agency of the adult care home disqualifies an applicant or terminates a conditional employee based on the Department's determination or on its own consideration of the factors in this subsection, then the adult care home or contract agency may disclose public criminal history information or public information that in the Department's determination is relevant to the disqualification but may not provide the criminal record check to the applicant.
(c)	Limited Immunity. – An adult care home and an officer or employee of an adult care home that, in good faith, complies with this section is not liable for the failure of the home to employ an individual on the basis of information provided in the criminal history record check of the individual.
(d)	Criminal History. – 'Criminal history' means a county, state, or federal criminal history of a conviction or pending indictment of a crime, whether a misdemeanor or felony, that bears upon an individual's fitness to have responsibility for the safety and well‑being of aged or disabled persons. These crimes include the criminal offenses set forth in any of the following Articles of Chapter 14 of the General Statutes: Article 6, Homicide; Article 7A, Rape and Other Sex Offenses; Article 8, Assaults; Article 10, Kidnapping and Abduction; Article 13, Malicious Injury or Damage by Use of Explosive or Incendiary Device or Material; Article 14, Burglary and Other Housebreakings; Article 15, Arson and Other Burnings; Article 16, Larceny; Article 17, Robbery; Article 18, Embezzlement; Article 19, False Pretenses and Cheats; Article 19A, Obtaining Property or Services by False or Fraudulent Use of Credit Device or Other Means; Article 19B, Financial Transaction Card Crime Act; Article 20, Frauds; Article 21, Forgery; Article 26, Offenses against Public Morality and Decency;  Article 39, Protection of Minors;and Article 59, Public Intoxication. These crimes also include possession or sale of drugs in violation of the North Carolina Controlled Substances Act, Article 5 of Chapter 90 of the General Statutes, and alcohol‑related offenses such as driving while impaired in violation of G.S. 20‑138.1 through G.S. 20‑138.5.
(e)	Penalty for Furnishing False Information. – Any applicant for employment who willfully furnishes, supplies, or otherwise gives false information on an employment application that is the basis for a criminal history record check under this section shall be guilty of a Class A1 misdemeanor.
(f)	Conditional Employment. – An adult care home may employ an applicant conditionally prior to obtaining a determination from the Department based on its review of the criminal history conducted under subsection (i) of this section if both of the following requirements are met:
(1)	The adult care home shall not employ an applicant prior to obtaining the applicant's consent for a criminal history record check as required in subsection (a) of this section or the completed fingerprint cards as required in G.S. 114‑19.10.
(2)	The adult care home shall submit the request for a criminal history record check not later than five business days after the individual begins conditional employment.
The adult care home shall terminate immediately the conditional employment of an individual upon receipt of notification from the Department that it has determined that the individual is unfit to be responsible for the safety or well‑being of aged or disabled persons.
(g)	Immunity From Liability. – An entity and officers and employees of an entity shall be immune from civil liability for 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.
(h)	Notice to Applicant. – At the time of application, the employing entity shall furnish the individual whose criminal history is to be checked with a statement substantially similar to the following:
"NOTICE

MANDATORY CRIMINAL HISTORY CHECK

NORTH CAROLINA LAW REQUIRES THAT A CRIMINAL HISTORY CHECK BE CONDUCTED ON ALL PERSONS WHO PROVIDE CARE TO RESIDENTS OF ADULT CARE HOMES AND WHO ARE NOT REQUIRED TO HAVE AN OCCUPATIONAL LICENSE TO PROVIDE THAT CARE.

	'Criminal history' includes county, state, and federal convictions or pending indictments of any of the following crimes: the following Articles of Chapter 14 of the General Statutes: Article 6, Homicide; Article 7A, Rape and Other Sex Offenses; Article 8, Assaults; Article 10, Kidnapping and Abduction; Article 13, Malicious Injury or Damage by Use of Explosive or Incendiary Device or Material; Article 14, Burglary and Other Housebreakings; Article 15, Arson and Other Burnings; Article 16, Larceny; Article 17, Robbery; Article 18, Embezzlement; Article 19, False Pretenses and Cheats; Article 19A, Obtaining Property or Services by False or Fraudulent Use of Credit Device or Other Means; Article 19B, Financial Transaction Card Crime Act; Article 20, Frauds; Article 21, Forgery; Article 26, Offenses Against Public Morality and Decency; and Article 59, Public Intoxication; violation of the North Carolina Controlled Substances Act, Article 5 of Chapter 90 of the General Statutes, and alcohol‑related offenses such as driving while impaired in violation of G.S. 20‑138.1 through G.S. 20‑138.5; or similar crimes under federal law or under the laws of other states. Your fingerprints will be used to check the criminal history records of the State Bureau of Investigation (SBI) and the Federal Bureau of Investigation (FBI).
If you have ever been convicted of homicide or rape, or if you have been convicted of any of the other crimes listed in the criminal history within 10 years preceding the date of application for employment, you will be determined as unfit to have responsibility for the safety and well‑being of aged or disabled persons. If you have been convicted of any of the crimes other than murder or rape, and the conviction occurred 10 or more years preceding the date of application for employment, the facility may determine your fitness based on your criminal history information and whether your name is listed in the Health Care Personnel Registry pursuant to G.S. 131E‑256.
If it is determined based on your criminal history or listing in the Health Care Personnel Registry, that you are unfit to have responsibility for the safety and well‑being of aged or disabled individuals, you shall have the opportunity to complete or challenge the accuracy of the information contained in the Health Care Personnel Registry.
If you disagree with the determination of the Department of Health and Human Services on your fitness to provide care, you may file a petition for a hearing with the Office of Administrative Hearings under Chapter 150B of the General Statutes within 60 days of the date you received notice of the Department's determination.
Any individual who intentionally falsifies any information required to be furnished to conduct the criminal history shall be guilty of a Class A1 misdemeanor."
(i)	Department Review of Criminal History. – After reviewing criminal history information of an individual conditionally employed or an applicant for employment obtained by the Department of Health and Human Services in accordance with this section, the Department shall make a determination as to the fitness of the individual to be responsible for the safety and well-being of aged or disabled persons. The Department of Health and Human Services shall make the determination within five business days of receipt of the criminal history information unless the Department of Health and Human Services is unable to determine within five business days the disposition or accuracy of the criminal history information obtained by the Department of Health and Human Services, in which case the Department of Health and Human Services shall make the determination as soon as possible after verifying the disposition or accuracy of the criminal history information. By the next business day following its determination, the Department shall provide its written determination to the adult care home or contract agency of the adult care home and shall also provide to the individual applicant or conditional employee a written statement as to the Department's determination and the basis on which it was made. The notice to the individual shall also provide that if the individual disagrees with the Department's determination, the individual may petition for a hearing under Chapter 150B of the General Statutes within 60 days of the date the individual receives the Department's determination. The Department shall maintain a record of each determination made, and the determination shall be binding on the Department for subsequent reviews of the same individual except to the extent that new information is obtained by the Department in the subsequent review. A determination issued by the Department to the requesting adult care home or contract agency of the adult care home is a final agency decision. An individual denied employment or termination from conditional employment based on the Department's determination may file a petition for a contested case under Chapter 150B of the General Statutes within 60 days of the date the individual receives the Department's determination. All information that the Department receives through the checking of the criminal history is privileged information and is not a public record but is for the exclusive use of the Department and those persons authorized under this section and federal law to receive the information. The Department may destroy the information after it is used for purposes authorized by this section after one calendar year.
(j)	Fitness for Employment. – An applicant is unfit to be responsible for the safety and well‑being of aged or disabled persons if the applicant's criminal history shows that:
(1)	The applicant was convicted of any of the offenses of homicide under Article 6 of Chapter 14 of the General Statutes or Rape and Other Sex Offenses under Article 7A of Chapter 14 of the General Statutes.
(2)	The applicant was convicted of any other offense listed in subsection (d) of this section within 10 years prior to the date of application for employment.
If an applicant's criminal history shows that the applicant was convicted of an offense listed in subsection (d) of this section, other than homicide or rape and other sex offenses, and the conviction occurred 10 or more years prior to the date of the application, the Department of Health and Human Services shall obtain the public record document reflecting the offense and shall provide the public record of that conviction to the adult care home or contract agency of the adult care home, and the adult care home or contract agency may consider whether or not to hire the applicant after considering the factors contained in subsection (b) of this section."
SECTION 2.  G.S. 131E‑265 reads as rewritten:
"§ 131E‑265.  Criminal history record checks required for certain applicants for employment.
(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. At the time of submitting the request for the criminal history record check, the nursing home or home care agency shall provide a copy of the request to the Department of Health and Human Services, Division of Facility Services. If the nursing home or home care agency receives the criminal history information from a private entity, then within two business days of receiving the criminal history information, the nursing home or home care agency shall forward the information to the Department of Health and Human Services, Division of Facility Services, for a determination of the individual's fitness as required 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.
(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. At the time of submitting the request for the criminal history record check, a contract agency of a nursing home or home care agency shall provide a copy of the request to the Department of Health and Human Services, Division of Facility Services. If the contract agency receives the criminal history information from a private entity, then within two business days of receiving the criminal history information, the contract agency shall forward the information to the Department of Health and Human Services, Division of Facility Services, for a determination of the individual's fitness as required 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.
(b)	Action. – 							
Except as provided in subsection (f) of this section, a nursing home, home care agency, or contract agency of a nursing home or home care agency shall not employ an individual who is subject to a criminal history record check under this section until the criminal history has been reviewed and a determination made by the Department of Health and Human Services in accordance with this section as to the individual's fitness to be responsible for the safety and well‑being of aged or disabled persons. If an applicant's criminal history shows that the applicant was convicted of an offense listed in subsection (d) of this section, other than homicide or rape and other sex offenses, and the conviction occurred 10 or more years prior to the date of the application, the Department of Health and Human Services shall obtain the public record document reflecting the offense and shall provide the public record of that conviction to the contract agency of the nursing home or home care agency and the contract agency may consider whether or not to hire the applicant after considering all of the following factors: 
(1)	The level and seriousness of the crime.
(2)	The date of the crime.
(3)	The age of the person at the time of 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 conviction by the person of one or more of the offenses listed in subsection (d) of this section, other than homicide or rape or other sex offense.
(8)	Whether the applicant's name is listed in the Health Care Personnel Registry based on findings by the Department of Health and Human Services under G.S. 131E‑256, and the nature of those findings.
If the nursing home, home care agency, or contract agency of the nursing home or home care agency disqualifies an applicant or terminates a conditional employee based on the Department's determination or on its own consideration of the factors in this subsection, then the contract agency may disclose public criminal history information or public information that in the Department's determination is relevant to the disqualification but may not provide the criminal record check to the applicant.
(c)	Limited Immunity. – An entity and an officer or employee of an entity that, in good faith, complies with this section is not liable for the failure of the entity to employ an individual on the basis of information provided in the criminal history record check of the individual.
(d)	Criminal History. – 'Criminal history' means a county, state, or federal criminal history of conviction or pending indictment of a crime, whether a misdemeanor or felony, that bears upon the individual's fitness to have responsibility for the safety and well‑being of aged or disabled persons. These crimes include the criminal offenses set forth in any of the following Articles of Chapter 14 of the General Statutes: Article 6, Homicide; Article 7A, Rape and Other Sex Offenses; Article 8, Assaults; Article 10, Kidnapping and Abduction; Article 13, Malicious Injury or Damage by Use of Explosive or Incendiary Device or Material; Article 14, Burglary and Other Housebreakings; Article 15, Arson and Other Burnings; Article 16, Larceny; Article 17, Robbery; Article 18, Embezzlement; Article 19, False Pretenses and Cheats; Article 19A, Obtaining Property or Services by False or Fraudulent Use of Credit Device or Other Means; Article 19B, Financial Transaction Card Crime Act; Article 20, Frauds; Article 21, Forgery; Article 26, Offenses against Public Morality and Decency; and Article 60, Computer‑Related Crime. These crimes also include possession or sale of drugs in violation of the North Carolina Controlled Substances Act, Article 5 of Chapter 90 of the General Statutes, and alcohol‑related offenses such as driving while impaired in violation of G.S. 20‑138.1 through G.S. 20‑138.5.
(e)	Penalty for Furnishing False Information. – Any applicant for employment who willfully furnishes, supplies, or otherwise gives false information on an employment application that is the basis for a criminal history record check under this section shall be guilty of a Class A1 misdemeanor.
(f)	Conditional Employment. – A nursing home or home care agency may employ an applicant conditionally prior to obtaining a determination from the Department of Health and Human Services based on its review of the criminal history conducted under subsection (i) of this section if both of the following requirements are met:
(1)	The nursing home or home care agency shall not employ an applicant prior to obtaining the applicant's consent for a criminal history record check as required in subsection (a) of this section or the completed fingerprint cards as required in G.S. 114‑19.10.
(2)	The nursing home or home care agency shall submit the request for a criminal history record check not later than five business days after the individual begins conditional employment.
The nursing home or home care agency shall terminate immediately the conditional employment of an individual upon receipt of notification from the Department that it has determined upon review of the criminal history that the individual is unfit to be responsible for the safety or well‑being of aged or disabled persons.
(g)	Immunity From Liability. – An entity and officers and employees of an entity shall be immune from civil liability for 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.
(h)	Notice to Applicant. – At the time of application, the individual whose criminal history is to be checked shall be furnished with a statement substantially similar to the following:
"NOTICE

MANDATORY CRIMINAL HISTORY CHECK

NORTH CAROLINA LAW REQUIRES THAT A CRIMINAL HISTORY CHECK BE CONDUCTED ON ALL PERSONS WHO PROVIDE CARE TO RESIDENTS OF NURSING HOMES AND PERSONS EMPLOYED BY HOME CARE AGENCIES AND WHO ARE NOT REQUIRED TO HAVE AN OCCUPATIONAL LICENSE TO PROVIDE THAT CARE.

'Criminal history' includes county, state, and federal convictions or pending indictments of any of the following crimes: the following Articles of Chapter 14 of the General Statutes: Article 6, Homicide; Article 7A, Rape and Other Sex Offenses; Article 8, Assaults; Article 10, Kidnapping and Abduction; Article 13, Malicious Injury or Damage by Use of Explosive or Incendiary Device or Material; Article 14, Burglary and Other Housebreakings; Article 15, Arson and Other Burnings; Article 16, Larceny; Article 17, Robbery; Article 18, Embezzlement; Article 19, False Pretenses and Cheats; Article 19A, Obtaining Property or Services by False or Fraudulent Use of Credit Device or Other Means; Article 19B, Financial Transaction Card Crime Act; Article 20, Frauds; Article 21, Forgery; Article 26, Offenses against Public Morality and Decency; and Article 59, Public Intoxication; violation of the North Carolina Controlled Substances Act, Article 5 of Chapter 90 of the General Statutes, and alcohol‑related offenses such as driving while impaired in violation of G.S. 20‑138.1 through G.S. 20‑138.5; or similar crimes under federal law or under the laws of other states. Your fingerprints will be used to check the criminal history records of the State Bureau of Investigation (SBI) and the Federal Bureau of Investigation (FBI).
If you have ever been convicted of homicide or rape, or if you have been convicted of any of the other crimes listed in the criminal history within 10 years preceding the date of application for employment, you will be determined as unfit to have responsibility for the safety and well‑being of aged or disabled persons. If you have been convicted of any of the crimes other than murder or rape, and the conviction occurred 10 or more years preceding the date of application for employment, the facility may determine your fitness based on your criminal history information and whether your name is listed in the Health Care Personnel Registry pursuant to G.S. 131E‑256.
If it is determined based on your criminal history or listing in the Health Care Personnel Registry, that you are unfit to have responsibility for the safety and well‑being of aged or disabled individuals, you shall have the opportunity to complete or challenge the accuracy of the information contained in the Health Care Personnel Registry.
If you disagree with the determination of the Department of Health and Human Services on your fitness to provide care, you may file a petition for a hearing with the Office of Administrative Hearings under Chapter 150B of the General Statutes within 60 days of the date you received notice of the Department's determination.
Any individual who intentionally falsifies any information required to be furnished to conduct the criminal history shall be guilty of a Class A1 misdemeanor."
(i)	Department Review of Criminal History. – After reviewing criminal history information of an individual conditionally employed or an applicant for employment obtained by the Department of Health and Human Services in accordance with this section, the Department shall make a determination as to the fitness of the individual to be responsible for the safety and well-being of aged or disabled persons. The Department of Health and Human Services shall make the determination within five business days of receipt of the criminal history information unless the Department of Health and Human Services is unable to determine within five business days the disposition or accuracy of the criminal information obtained by the Department of Health and Human Services, in which case the Department of Health and Human Services shall make the determination as soon as possible after verifying the disposition or accuracy of the criminal history information. By the next business day following its determination, the Department shall provide its written determination to the nursing home, home care agency, or contract agency of the nursing home or home care agency, and shall also provide to the individual applicant or conditional employee a written statement as to the Department's determination and the basis on which it was made. The notice to the individual shall also provide that if the individual disagrees with the Department's determination, the individual may petition for a hearing under Chapter 150B of the General Statutes within 60 days of the date the individual receives the Department's determination. The Department shall maintain a record of each determination made, and the determination shall be binding on the Department for subsequent reviews of the same individual except to the extent that new information is obtained by the Department in the subsequent review. A determination issued by the Department to the requesting nursing home or home care agency is a final agency decision. An individual denied employment or termination from conditional employment based on the Department's determination may file a petition for a contested case under Chapter 150B of the General Statutes within 60 days of the date the individual receives the Department's determination. All information that the Department receives through the checking of the criminal history is privileged information and is not a public record but is for the exclusive use of the Department and those persons authorized under this section and federal law to receive the information. The Department may destroy the information after it is used for purposes authorized by this section after one calendar year.
(j)	Fitness for Employment. – An applicant is unfit to be responsible for the safety and well‑being of aged or disabled persons if the applicant's criminal history shows that:
(1)	The applicant was convicted of any of the offenses of Homicide under Article 6 of Chapter 14 of the General Statutes or Rape and Other Sex Offenses under Article 7A of Chapter 14 of the General Statutes.
(2)	The applicant was convicted of any other offense listed in subsection (d) of this section within 10 years prior to the date of application for employment.
If an applicant's criminal history shows that the applicant was convicted of an offense listed in subsection (d) of this section, other than homicide or rape and other sex offenses, and the conviction occurred 10 or more years prior to the date of the application, the Department of Health and Human Services shall obtain the public record document reflecting the offense and shall provide the public record of that conviction to the nursing home or home care agency, and the nursing home or home care agency may consider whether or not to hire the applicant after considering the factors contained in subsection (b) of this section."		
SECTION 3.  G.S. l14‑19.10 reads as rewritten:
"§ 114‑19.10.  Criminal history record checks for adult care homes, nursing homes, home care agencies, and area mental health, developmental disabilities, and substance abuse services authorities.
As authorized by this section, 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, including a contract agency of a nursing home that is subject to Article 16 of Chapter 131E of the General Statutes.(2)	Adult care homes licensed under Chapter 131D of the General Statutes, including a contract agency of an adult care home that is subject to Article 5 of Chapter 131D of the General Statutes.(3)	Home care agencies licensed under Chapter 131E of the General Statutes, including a contract agency of a home care agency that is subject to Article 16 of Chapter 131E of the General Statutes.
(4)	Area mental health, developmental disabilities, and substance abuse services authorities licensed under Chapter 122C of the General Statutes, including a contract agency of an area authority that is subject to the provisions of Article 4 of that Chapter.
For national checks, the criminal history shall be provided to nursing homes and home care agencies for employment positions covered by Public Law 105‑277. For employment positions in nursing homes and home care agencies or home health care agencies not covered by Public Law 105‑277, and for agencies listed in subdivisions (1) through (3) of this section, the national and State criminal history shall be provided to the Department of Health and Human Services, Division of Facility Services. For State checks, the Department shall provide the criminal history to nursing homes and home care agencies in accordance with G.S. 131E‑265 and to adult care homes in accordance with G.S. 131D‑40. The criminal history shall be provided to area mental health, developmental disabilities, and substance abuse services authorities 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 4.  The Department of Health and Human Services shall determine if consolidation of its criminal record checks functions would result in a cost savings to the Department and, if so, shall implement the consolidation not later than January 1, 2005.  
SECTION 5.  There is appropriated from the General Fund to the Department of Health and Human Services, Division of Facility Services, the sum of one hundred thirty‑three thousand three hundred twenty‑eight dollars ($133,328) for the 2004‑2005 fiscal year.  These funds shall be used to carry out the duties required under this act. The Department shall apply for federal funds available under P.L. 108‑173 or other federal law to expedite the implementation of criminal history record checks of nursing homes, adult care homes, and contract agencies. If federal funds are received, then the Department may use funds appropriated in this act for criminal record check implementation purposes other than those purposes for which federal funds are received.
SECTION 6.  Sections 1 through 4 of this act become effective January 1, 2005.  The remainder of this act becomes effective July 1, 2004.