Bill H.4003

HOUSE DOCKET, NO. 4297 FILED ON: 2/29/2012

HOUSE . . . . . . . . . . . . . . . No. 4003

By Ms. Peisch of Wellesley, a petition (subject to Joint Rule 12) of Alice Hanlon Peisch relative to the protection of children. Education.

The Commonwealth of Massachusetts

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In the Year Two Thousand Twelve

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An Act to protect children.

Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:

SECTION 1. Subsection (a) of section 7 of chapter 15D of the General Laws, as appearing in the 2010 Official Edition, is hereby amended by inserting at the end thereof the following paragraph:-

As part of the department’s licensure and Background Record Check process, the department shall conduct fingerprint-based checks of the state and national criminal history databases, pursuant to section 16962 of chapter 42 of the United States Code, before issuing any license. Said fingerprint-based checks shall be conducted on any applicant for a family child care, small group and school age, large group and school age, residential and placement license or family child care assistant certificate. In addition, said fingerprint based checks shall be conducted for all applicants for employment, who have the potential for unsupervised contact with children, in any department licensed or funded program and for all household members or persons regularly on the premises, aged 15 and older, of applicants for family child care licensure. Such fingerprint-based checks shall also be required for all in-home non-relative department funded caregivers, and for all applicants to be adoptive or foster parents. Authorized department staff may receive and appropriately disseminate all criminal offender record information and the results of checks of state and national criminal information databases, pursuant to section 16962 of chapter 42 of the United States Code, in accordance with the law.

SECTION 2. Subsection (b) of section 7 of said chapter 15D of the General Laws, as so appearing, is hereby amended by inserting at the end thereof the following paragraph:-

As part of the department’s approval process, the department shall conduct fingerprint-based checks of the national crime information databases pursuant to section 16962 of chapter 42 of the United States Code before issuing any approval. Said fingerprint based checks shall be conducted for all applicants for employment, who have the potential for unsupervised contact with children, in any department approved program. Authorized department staff may receive and appropriately disseminate all criminal offender record information and the results of checks of state and national criminal information databases, pursuant to section 16962 of chapter 42 of the United States Code, in accordance with the law.

SECTION 3. Subsection (b) of section 8 of said chapter 15D of the General Laws, as so appearing, is hereby amended by inserting after the word “fees”, in line 35, the following words:- “which shall incorporate all fees associated with conducting fingerprint-based checks of the state and national criminal history databases, pursuant to section 16962 of chapter 42 of the United States Code, as set by the department,”

SECTION 4. Subsection (d) of section 8 of said chapter 15D of the General Laws, as so appearing, is hereby amended by inserting after the word “check”, in line 55, the following words:- “and fingerprint-based checks of the state and national criminal history databases pursuant to section 16962 of chapter 42 of the United States Code.”

SECTION 5. Section 8 of said chapter 15D of the General Laws, as so appearing, is hereby amended by inserting at the end thereof the following new subsection:-

(j) Fingerprints, as referenced in subsections (a) and (b) of section 7 and subsections (b) and (d) of section 8 of chapter 15D will be submitted to the identification section of the department of state police for a state criminal history check and forwarded to the Federal Bureau of Investigation for a national criminal history check, according to the policies and procedures established by the identification section and by the department of criminal justice information services. Fingerprint submissions may be retained for the purpose of ensuring the continued suitability for licensure, certification, approval or employment of those individuals.

The department of criminal justice information services shall disseminate the results of the criminal background check to the department. The department shall retain information obtained under this section according to the policies and procedures established by the department of criminal justice information services and shall not disseminate the information except as authorized by law.

The department, with approval from the board, shall amend its Background Record Check regulations in a manner necessary to carry out the provisions of this section.

Any and all persons required to undergo the fingerprinting process described in this chapter, including but not limited to any applicant for department licensure or for employment at a department licensed or funded program, or any household member or person regularly on the premises, aged fifteen and above in a family child care program, any prospective foster or adoptive parent, and any in-home non-relative caregiver, shall pay a fee, to be established by the department in consultation with the secretary of public safety and security, to offset the costs of operating and administering a fingerprint-based criminal background check system. The department licensed or funded programs may reimburse applicants for employment for all or part of the fee on grounds of financial hardship. The fee shall be deposited into the Fingerprint-Based Background Check Trust Fund established under section 2CCCC of chapter 29, provided, however, that 10 percent of the fee may be retained by the commissioner to fund the investigations unit.

SECTION 6. Section 9 of said chapter 15D of the General Laws, as so appearing, is hereby amended by inserting at the end thereof the following new subsections:-

(d) In addition to the power of the department set forth in sections 7, 8 and 9 of chapter 15D, the department shall investigate any and all alleged violations of law or regulation under the authority of this chapter as necessary for the protection of children. At any stage of an investigation or proceeding occasioned by an allegation of any violation of this chapter and the regulations promulgated thereunder, the commissioner may issue a subpoena or a subpoena duces tecum to summon a witness or compel the production of documents. An individual who holds a department license or works in a department licensed program is deemed to have sufficient contacts with Massachusetts to confer jurisdiction pursuant to section 3 of chapter 223A. Department staff conducting such investigations may receive and appropriately disseminate criminal offender record information and the results of finger-print based checks of the state and national criminal information databases, pursuant to section 16962 of chapter 42 of the United States Code, in accordance with the law.

(e) No person who files a complaint, reports alleged wrongdoing or provides information about a licensee, applicant or any other person described in sections 7, 8 and 9 of this chapter, or who assists the department, at its request, in discharging its duties and functions, shall be liable in any cause of action arising out of the provision of such information or assistance if the person acted in good faith and without malice.

SECTION 7. Chapter 29 of the General Laws is hereby amended by inserting after section 2BBBB the following section: -

Section 2CCCC. There is hereby established and set up on the books of the commonwealth a separate fund to be known as the Fingerprint-Based Background Check Trust Fund. Amounts credited to such fund shall be available, without further appropriation, to the executive office of public safety and security to carry out fingerprint-based state and national background criminal checks for the purposes of employment, professional licensure and other non-criminal justice purposes.

The fund shall be utilized for the sole purpose of carrying out state and national criminal background checks and verifications, including, but not limited to, obtaining or contracting to obtain fingerprints and fees from subjects, making payments charged by the Federal Bureau of Investigation or other entity, staffing the department of state police and the department of criminal justice information services to submit fingerprints and to obtain, verify and disseminate the results of background checks, and maintaining the public safety information systems used to obtain access to fingerprint-based state and national criminal background information.

SECTION 8. Section 1A of chapter 69 of the General Laws, as appearing in the 2010 Official Edition, is hereby amended by inserting after the second paragraph the following paragraph:-

The commissioner may appoint a chief of investigations and other investigators, who shall be exempt from chapter thirty-one and who may investigate alleged violations of law or regulation under the authority of the commissioner as necessary for the protection of children. Investigators may receive and appropriately disseminate all criminal offender record information and the results of checks of national crime information databases, pursuant to section 16962 of chapter 42 of the United States Code, in accordance with the law.

SECTION 9. Section 38G of chapter 71 of the General Laws, as appearing in the 2010 Official Edition, is hereby amended by inserting after the 15th paragraph the following paragraphs:-

At any stage of an investigation or proceeding occasioned by an allegation of misconduct by a licensed educator or an applicant for licensure, pursuant to this chapter and the regulations promulgated hereunder, the commissioner may request and shall receive from school districts and any public or private school in the Commonwealth, including a chapter 71B approved special education program, any and all information and documents relating to any individual, including the educator's complete personnel record, as defined in section 52C of chapter 149 and including the results of checks of state and national criminal information databases. At any stage of an investigation or proceeding occasioned by an allegation of misconduct by a licensed educator or an applicant for licensure, pursuant to this chapter and the regulations promulgated hereunder, the commissioner or his designee may issue a subpoena or a subpoena duces tecum to summon a witness or compel the production of documents. An individual who holds teacher certification pursuant to this section is deemed to have sufficient contacts with Massachusetts to confer jurisdiction pursuant to section 3 of chapter 223A.

No person who files a complaint, reports alleged wrongdoing or provides information about a licensed educator or administrator or an applicant for licensure pursuant to this section or who assists the commissioner at his request in discharging his duties and functions shall be liable in any cause of action arising out of the provision of such information or assistance if the person acted in good faith and without malice.

SECTION 10. Section 38R of said chapter 71 of the General Laws, as so appearing, is hereby amended by striking out the first and second paragraphs and inserting in place thereof the following paragraphs:-

In a manner prescribed by the board of elementary and secondary education, the school committee and superintendent of any city, town or regional school district and the principal or other administrator, by whatever title the position be known, of a public or private school, including a chapter 71B approved special education school program, shall obtain periodically, but not less than every 3 years, from the department of criminal justice information services all available criminal offender record information for any current or prospective employee or volunteer of the school district, or for any subcontractor or laborer commissioned by the school committee or school to perform work on school grounds, who may have direct and unmonitored contact with children, including any individual who regularly provides school related transportation to children.

Said school committee, superintendent or principal shall also obtain a state and national fingerprint-based criminal background check, as authorized by Public Law 92-544, for the purpose of determining the suitability of current and prospective employees of the school department who may have direct and unmonitored contact with children. Said school committee, superintendent or principal shall also obtain such a check for any individual who regularly provides school related transportation to children and any subcontractor or laborer commissioned by the school committee or school to perform work on school grounds who may have direct and unmonitored contact with children. Fingerprints will be submitted to the identification section of the department of state police for a state criminal history check and forwarded to the Federal Bureau of Investigation for a national criminal history check, according to the policies and procedures established by the identification section and by the department of criminal justice information services. Fingerprint submissions may be retained for the purpose of ensuring the continued suitability of those individuals.

The department of criminal justice information services shall disseminate the results of the criminal background check to the school committee, superintendent or principal or the designee of the school committee, superintendent or principal. The school committee, superintendent or principal shall retain information obtained under this section according to the policies and procedures established by the department of criminal justice information services and shall not disseminate the information except as authorized by law. Said school committee, superintendent or principal shall notify the commissioner of any criminal record information relevant to the fitness for licensure of any holder of, or applicant for, a Massachusetts educator’s license.

The board shall in a manner provided by law and in accordance with sections 167 to 168, inclusive of chapter 6, promulgate regulations necessary to carry out this section. The regulations shall provide for the confidentiality of criminal offender record information and the results of finger-print based checks of the state and national criminal history databases, pursuant to section 16962 of chapter 42 of the United States Code, obtained pursuant to this section.

The applicant shall pay a fee, to be established by the secretary of administration and finance in consultation with the secretary of public safety and security and the commissioner, to offset the costs of operating and administering a fingerprint-based criminal background check system. The school committee, superintendent or principal may reimburse applicants all or part of the fee on grounds of financial hardship. The fee shall be deposited into the Fingerprint-Based Background Check Trust Fund established under section 2CCCC of chapter 29, provided, however, that 10 percent of the fee may be retained by the commissioner to fund the investigations unit.

SECTION 11. Subsection (l) of section 51B of chapter 119 of the General Laws, as appearing in the 2010 Official Edition, is hereby amended by inserting after the word “part,” in line 124, the following words: -“or was committed by an individual the department has reason to believe was licensed”; and further amended by inserting after the words “youth services”, in line 127, the following words: - “, or was employed at a facility approved or licensed by the department of early education and care”.

SECTION 12. Section 10 of this act shall take effect on May 4, 2012.

Name:	District/Address:	Date Added:
Alice Hanlon Peisch	14th Norfolk	2/29/2012