FILED ON: 7/18/2012
HOUSE . . . . . . . . . . . . . . . No. 4307
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The Commonwealth of Massachusetts
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In the Year Two Thousand Twelve
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An Act relative to background checks.
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. When the department obtains the results of checks of state and national criminal information databases, it shall treat such information in keeping with the provisions of sections 167 through 178, inclusive, of chapter 6 and the regulations thereto, regarding criminal offender record information.
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. When the department obtains the results of checks of state and national criminal information databases, it shall treat such information in keeping with the provisions of sections 167 through 178, inclusive, of chapter 6 and the regulations thereto, regarding criminal offender record information.
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 and national criminal history checks may be retained by the department of criminal justice information services for the purposes of ensuring the continued suitability for licensure, certification, approval or employment of those individuals, provided that said department is authorized to disseminate the results of a national criminal history check to the department of early education and care for the purpose of determining the suitability of current and prospective employees in any department licensed or funded program and for all household members or persons regularly on the premises, aged 15 or older, of applicants for family child care licensure, all in-home non-relative department funded caregivers, and for all applicants to be adoptive or foster parents.
The department of criminal justice information services shall disseminate the results of the criminal background check to the department. Said department of criminal justice information services shall only disseminate information under this section that would otherwise be available to requesting entities under the provisions of sections 167 through 178, inclusive, of chapter 6 and the regulations thereto, regarding criminal offender record information.
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, provided that the regulations may reflect a phased-in schedule for the fingerprint-based background checks, provided, however, that such phase-in shall not begin prior to September 1, 2013.
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, provided that said fee shall not exceed 35 dollars per person; provided, further, that the fee may increase accordingly if the federal bureau of investigation increases its fees for fingerprint background checks services. 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 2FFFF of chapter 29.
SECTION 6. Chapter 29 of the General Laws is hereby amended by inserting after section 2EEEE the following section: -
Section 2FFFF. 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 to which shall be credited any appropriations or other monies authorized by the general court and specifically designated to be credited thereto, and any additional funds designated for deposit into the fund, including any private donations made available for deposit into the 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.
The department of criminal justice information services shall report annually to the house and senate committees on ways and means and the joint committee on education on the cost of operating and administering the fingerprint-based criminal background check system, including expenditures from the fund and their purposes.
SECTION 7. 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 of any city, town or regional school district or 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 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, provided, however, that school committees shall only obtain a state and national fingerprint-based criminal background check for current and prospective employees for whom they have direct hiring authority. Said superintendent, principal or other administrator 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 and national criminal history checks may be retained by the department of criminal justice information services for the purpose of ensuring the continued suitability of those individuals, provided that said department is authorized to disseminate the results of a national criminal history check to a school committee, superintendent or principal, or their designees, for the purpose of determining the suitability of current and prospective employees of the school department, and to the department of elementary and secondary education for the purpose of determining the suitability of applicants for licensure and licensed educators who may have direct and unmonitored contact with children; provided, however, that the department of criminal justice information services is authorized to disseminate to school committees only those results for current and prospective employees for whom they have direct hiring authority.
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, provided, however, that said department of criminal justice information services shall disseminate to school committees only those results for current and prospective employees for whom they have direct hiring authority. Entities that receive the results of national criminal background checks shall treat such information in keeping with the provisions of sections 167 through 178, inclusive, of chapter 6 and the regulations thereto, regarding criminal offender record information. Said department of criminal justice information services shall only disseminate information under this section that would otherwise be available to requesting entities under the provisions of sections 167 through 178, inclusive, of chapter 6 and the regulations thereto regarding criminal offender record information. 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 this section and sections 167 through 178, inclusive, of chapter 6 and the regulations thereto, 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 regulations may also address how fingerprint based background checks shall be conducted for student teacher candidates, and may reflect a phased-in schedule for the fingerprint-based background checks, provided, however, that such phase-in shall not begin prior to September 1, 2013.
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, provided that the fee shall not exceed 55 dollars for employees who are certified pursuant to section 38G and shall not exceed 35 dollars for employees who are not certified pursuant to section 38G, provided further, that said fee may increase accordingly if the federal bureau of investigations increases its fee for fingerprint background check services. 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 2FFFF of chapter 29.
SECTION 8. 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 9. Sections 1, 2 and 7 of this act shall take effect for the 2013-2014 school year for new employees, provided that employees hired before that time shall submit fingerprints for federal background checks within 3 years. If an individual subject to section 1, 2 or 7 applies to work with another school district or Department of Early Education and Care licensed facility and has previously submitted a fingerprint based background check, the employer shall be authorized to access the individual’s original background check from the department of criminal justice information services in order to determine the applicant’s suitability for employment.