Bill S.312

SENATE DOCKET, NO. 2178 FILED ON: 1/18/2019

SENATE . . . . . . . . . . . . . . No. 312

By Ms. Lovely, a petition (accompanied by bill, Senate, No. 312) of Joan B. Lovely, Bradley H. Jones, Jr., Patrick M. O'Connor, Ryan C. Fattman and other members of the General Court for legislation to prevent the sexual abuse of children and youth. Education.

[SIMILAR MATTER FILED IN PREVIOUS SESSION
SEE SENATE, NO. 295 OF 2017-2018.]

The Commonwealth of Massachusetts

_______________

In the One Hundred and Ninety-First General Court
(2019-2020)

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An Act stopping harm inflicted by the exploitation of life and development.

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. This act shall be known as the SHIELD Act.

SECTION 2. The General Laws, as appearing in the 2016 Official Edition, are hereby amended by inserting after chapter 119A the following chapter:-

CHAPTER 119 B. CHILD SEXUAL ABUSE PREVENTION

Section 1. For the purposes of this chapter, the following words and phrases shall have the following meanings:-

"Abuse" means an act involving a child or student that constitutes a sexual offense under the laws of the Commonwealth or any sexual misconduct between an adult and a child or student under the care of that individual.

“Abuse prevention policy” means a policy adopted by a school or youth-serving organization that supports the prevention of sexual abuse by outlining a code of conduct for employees that identifies inappropriate or boundary violating behaviors between a teacher and a student.

“Age-appropriate” means topics, messages, and teaching methods suitable to particular ages or age groups of children and adolescents, based on developing cognitive, emotional, and behavioral capacity typical for the age or age group

“Boundary violating behaviors” means a range of verbal, non-verbal, written or electronic communications, or physical activities that the school or youth-serving organization has deemed inappropriate between an employee and student or youth, regardless of whether the behaviors are sexually motivated.

“Child” means a student or other individual under the age of 18.

"Direct contact with children" means the possibility of care, supervision, guidance or control of children or routine interaction with children.

“Employee” means any person defined as such in section 148B of chapter 149.

“Job performance” includes, but is not limited to, abilities, attendance, attitude, awards, demotions, disciplinary actions, duties, effort, knowledge, promotions, skills, and. in the case of a former school employee, the reasons for separation.

“Mandated reporter” means any person defined as such in section 21 of chapter 119.

"School" means a Massachusetts public school or public school district, and includes a collaborative school, charter school, virtual school or innovation school; or a Massachusetts private day or residential school, including a special education school program approved under chapter 71B; or a Massachusetts independent or parochial school.

"Sexual misconduct" means any act, including, but not limited to, any verbal, nonverbal, written or electronic communication or physical activity, directed toward or with a child, regardless of the age of the child, that is designed to promote a romantic or sexual relationship with the child. Such acts include, but are not limited to:

(a) Sexual or romantic invitation

(b) Dating or soliciting dates

(d) Making sexually suggestive comments

(e) Self-disclosure or physical exposure of a sexual, romantic or erotic nature

(f) Any sexual, indecent, romantic or erotic contact with a child or student.

“Student” means an individual under the age of 19 who has not received a high school diploma, general educational development certificate or equivalent document and is served by a school; or an individual under the age of 22 who has special needs under chapter 71B and has not received a high school diploma, general educational development certificate or equivalent document, and is served by a school.

“Youth-serving organization” means an entity with the mission of providing activities and socialization for minors.

Section 2. Abuse Prevention Policies

(a) Every school and youth-serving organization shall adopt an abuse prevention policy that supports the prevention of sexual abuse by outlining a code of conduct for employees that identifies inappropriate or boundary violating behaviors for teachers and students. The policy shall also detail the institution’s procedures for meeting its obligations under section 51A of chapter 119.

(b) The department of elementary and secondary education, in consultation with the office of the child advocate and other agencies the department deems relevant, including, but not limited to, the department of children and families, the department of early education and care, the Children’s Trust Fund, and Massachusetts Citizens for Children, shall create a model abuse prevention policy that schools and youth-serving organizations shall use.

(c) The department shall review the model abuse prevention policy at least once every five years to ensure it includes up-to-date information and best practices.

Section 3. Employee Sexual Abuse Prevention Education

(a) All mandated reporters employed by (1) any school that serves early childhood, pre-kindergarten, kindergarten, elementary and secondary school students; (2) any state-operated or state-licensed program that provides educational services to early childhood, pre-kindergarten and kindergarten to grade 12 students; and (3) any youth-serving organization maintained by non-profit or for-profit entities, shall receive instruction biennially on the prevention, identification, and reporting of child sexual abuse. This instruction shall include comprehensive training and information to help schools, state-licensed programs, and youth-serving organizations and their personnel:

(1) recognize, appropriately respond to, and prevent behaviors violating the school or youth-serving organization’s abuse prevention policy, and recognize when such behaviors provide reasonable cause to believe that a child is being abused;

(2) recognize, appropriately respond to, and prevent sexually inappropriate, coercive, or abusive behaviors between children and youth served by schools, programs, and youth-serving organizations;

(3) identify the ways in which the behavioral and verbal cues for sexual abuse differ from those of other abuse and neglect;

(4) support the healthy development of students and children, and the building of protective factors, to mitigate against their sexual victimization by adults or by other children;

(5) respond to disclosures of sexual abuse or reports of behaviors violating the abuse prevention policy of adults or children in a supportive and appropriate manner that meets mandated reporting requirements under section 51A of chapter 119;

(6) seek out community resources available to assist schools, programs, and youth-serving organizations in the prevention, identification, reporting and referral to treatment of cases involving the sexual abuse or exploitation of children or youth.

(b) Employees identified in this section shall complete the required training biennially. Employees required to undergo continuing professional education shall receive credit toward the continuing professional education requirements if the department of elementary and secondary education has approved the training program.

(c) School boards, state agencies operating or licensing programs that serve children and youth, and the boards of directors of youth-serving organizations, shall use tested, research-based instructional materials that meet the requirements of subsection (a) and that the department of elementary and secondary education has approved. The mode of delivery for the trainings may include in-person or e-learning instruction.

(d) The department of elementary and secondary education and the department of early education and care, in consultation with the office of the child advocate and other agencies the commissioner deems relevant, including, but not limited to, the department of children and families, the Children’s Trust Fund, Massachusetts Citizens for Children, the Massachusetts District Attorneys Association, the Massachusetts chapter of the National Association of Social Workers, the Massachusetts Medical Society, the Massachusetts Teachers’ Association, and the American Federation of Teachers, shall adapt, implement and maintain an existing evidence-based online or in-person training course to satisfy the requirements of subsection (c); provided, however, that if the department cannot find an existing program to adapt to this purpose, then the department shall create, implement, maintain and update such a training program; provided further, that such training program shall be provided to schools and youth-serving organizations at no cost.

(e) For each training required under this section, each school, state-operated or state-licensed program, or youth-serving organization shall maintain, until at least the third anniversary of the training, records that include the names of the individuals within their school, program, or organization who participated in the training during that year.

(f) School boards, state agencies or licensing programs that serve children and youth, and the boards of directors of youth-serving organizations, shall make information on such education and training available to parents, legal guardians, and other interested persons upon request.

Section 4. Youth Sexual Abuse Education

(a) Every school that serves elementary and secondary school students, every state-operated or state-licensed program serving children and youth, and every youth-serving organization maintained by non-profit or for-profit entities shall provide age-appropriate instruction to help students and children served by such schools, programs, or youth-serving organizations:

(1) Recognize and report boundary-violating behaviors in adults that might indicate they pose a sexual risk to children and youth;

(2) Recognize and report boundary-violating behaviors in other children that might indicate they pose a sexual risk to children and youth;

(3) Learn how to develop healthy and respectful interpersonal relationships, including appropriate body boundaries and privacy rules;

(4) Learn how to communicate effectively to trusted adults any concerns they have about body boundaries or privacy violations;

(5) Learn about available school and community resources to prevent and respond to sexual abuse; and

(6) Recognize and understand the consequences of false, inaccurate, or exaggerated reports and the importance of children reporting honestly to the best of their ability.

(b) School boards, state agencies operating or licensing programs that serve children and youth, and the boards of directors of youth-serving organizations shall use tested, research-based instructional materials that meet the requirements of subsection (a) and that have been demonstrated to increase the prevention knowledge and skills of those trained. The mode of delivery for the trainings may include in-person or e-learning instruction.

(c) For each training required under this section, each school, state-operated or state-licensed program, or youth-serving organization shall maintain, until at least the third anniversary of the training, records that include the name of the individuals within their school, program, or organization who participated in the training during that year.

(d) School boards, state agencies or licensing programs that serve children and youth, and the Boards of Directors of youth-serving organizations shall make information on such education and training available to parents, legal guardians, and other interested persons upon request.

Section 5. Sexual Abuse Prevention Hiring Requirements

(a) Notwithstanding section 38R of chapter 71, before a school or independent contractor may offer employment to an applicant who would be employed by or work in a school in a position involving direct contact with children, the school or independent contractor shall require the applicant to provide:

(1) A list, including name, address, telephone number and other relevant contact information of the applicant, including:

(i) Current employer

(ii) All former employers that were school entities

(iii) All former employers if the applicant was employed in positions that involved direct contact with children.

(2) A written authorization that consents to and authorizes disclosure by the applicant's current and former employers in subparagraph (1) of the information requested under subsection (b).

(3) A written statement of whether the applicant:

(i) has been the subject of (1) an abuse or sexual misconduct investigation by any employer, State licensing agency, law enforcement agency, unless the investigation resulted in a finding that the allegations were false or inconclusive; or (2) an investigation of abuse under section 51A of chapter 119 in which the allegations of abuse against the applicant were substantiated by the department of children and families and not subsequently unsubstantiated or overturned on appeal;

(ii) has ever been disciplined, discharged, non-renewed, asked to resign from employment, resigned from or otherwise separated from any employment (1) while allegations of abuse or sexual misconduct were pending or under investigation, unless the investigation resulted in a finding that the allegations were false or inconclusive, or in the case of section 51A of chapter 119, unsubstantiated; or (2) due to an adjudication or findings of abuse or sexual misconduct.; or

(iii) has ever had a license, professional license or certificate suspended, surrendered or revoked (1) while allegations of abuse or sexual misconduct were pending or under investigation, unless the investigation resulted in a finding that the allegations were false or inconclusive, or in the case of section 51A of chapter 119, unsubstantiated; or (2) due to adjudicated findings of abuse or sexual misconduct.

Material required information shall include all of an applicant’s conduct that is known by the previous employer, regardless of whether the conduct occurred before, on or after the date of the passage of this law.

(b) Before a school or independent contractor may offer employment to an applicant who would be employed by or work in a school in a position involving contact with children, the school or independent contractor shall conduct a review of the employment history of the applicant by contacting those employers listed by the applicant and requesting the following information:

(1) The dates of employment of the applicant.

(2) A statement as to whether the applicant:

(i) was the subject of (1) an abuse or sexual misconduct investigation by any employer, State licensing agency, law enforcement agency, unless such investigation resulted in a finding that the allegations were false or inconclusive; or (2) an investigation of abuse under section 51A of chapter 119 in which the allegations of abuse against the applicant were substantiated by the department of children and families and not subsequently unsubstantiated or overturned on appeal.

(ii) was disciplined, discharged, non-renewed, asked to resign from employment, resigned from or otherwise separated from any employment (1) while allegations of abuse or sexual misconduct were pending or under investigation, unless the investigation resulted in a finding that the allegations were false or inconclusive or, in the case of section 51A of chapter 119, unsubstantiated; or (2) due to an adjudication or findings of abuse or sexual misconduct; or

(iii) has ever had a license, professional license or certificate suspended, surrendered or revoked while allegations of abuse or sexual misconduct were pending or under investigation, or due to adjudicated findings of abuse or sexual misconduct.

(c) Before a school or independent contractor may offer employment to an applicant who would be employed by or in a school entity in a position involving direct contact with children, the school entity or independent contractor shall check the eligibility for employment or certification status of the applicant to determine whether the applicant holds valid and active certification appropriate for the position and is otherwise eligible for employment and whether the applicant has been the subject of professional discipline.

(d) An applicant who provides false information or willfully fails to disclose material required information shall be subject to discipline up to, and including, termination or denial of employment and may be subject to professional discipline.

(e) No later than 120 days after receiving a request for information under subsection (b), an employer that has or had an employment relationship with the applicant shall disclose the information requested. The employer shall disclose the information on a standardized form developed by the department of elementary and secondary education.

(f)(1) After reviewing the information initially disclosed under subsection (a)(2) and finding an affirmative response to subsection (a)(2)(i), (ii) or (iii), or disclosed under section (b) and finding an affirmative response to subsection (b)(2)(i), (ii) or (iii), where the prospective employing school or contractor makes a determination to consider the applicant for employment, the school or contractor shall request that former employers provide any additional material information about the matters disclosed. The applicant shall provide written authorization that consents to and authorizes disclosure by the applicant's current and former employers of said additional material information.

(2) Former employers shall provide the additional information requested no later than 90 days after the prospective employer's request under this paragraph.

(3) Information received under this section shall not be deemed a public record for the purposes of section 10 of chapter 66.

(4) A school that receives the information under this subsection shall use the information solely for the purpose of evaluating an applicant's fitness to be hired or for continued employment.

(g) A school or independent contractor may hire an applicant on a provisional basis for no more than 90 days pending the school entity's or independent contractor’s review of information and records received under this section, provided that all of the following are satisfied:

(1) the applicant has provided all of the information and supporting documentation required;

(2) the school administrator has no knowledge of information pertaining to the applicant that would disqualify the applicant from employment; and

(3) the applicant swears or affirms that the applicant is not disqualified from employment.

(h) A school or independent contractor may not enter into a collective bargaining agreement, an employment contract, an agreement for resignation or termination, a severance agreement or any other contract or agreement or take any action that interferes with the operation of section 51A of chapter 119 or appropriate criminal authority. Any provision of an employment contract or agreement for resignation or termination or a severance agreement that is executed, amended or entered into after the effective date of this section and that is contrary to this section shall be void.

(i)(1) For substitute employees, the employment history review required by this section shall be required only prior to the initial hiring of a substitute or placement on the school entity's approved substitute list and shall remain valid as long as the substitute continues to be employed by the same school entity or remains on the school entity's approved substitute list.

(2) A substitute seeking to be added to another school entity's substitute list shall undergo a new employment history review. The appearance of a substitute on one school entity's substitute list does not relieve another school entity from compliance with this section.

(3) An employment history review conducted upon initial hiring of a substitute employee by an independent contractor, intermediate unit or any other entity that furnishes substitute staffing services to school entities shall satisfy the requirements of this section for all school entities using the services of that independent contractor, intermediate unit or other entity.

(4) An independent contractor, intermediate unit or any other entity furnishing substitute staffing services to school entities shall comply with the provisions of this Act.

(5) For purposes of this subsection, "substitute employee" shall not mean school bus drivers employed by an independent contractor.

(j)(1) For employees of independent contractors, the employment history review required by this section shall be performed either at the time of the initial hiring of the employee or prior to the assignment of an existing employee to perform work for a school entity in a position involving direct contact with children. The review shall remain valid as long as the employee remains employed by that same independent contractor even though assigned to perform work for other school entities.

(2) An independent contractor shall maintain records documenting employment history reviews for all employees as required by this section and, upon request, shall provide a school entity for which an employee is assigned to perform work access to the records pertaining to that employee.

(3) Prior to assigning an employee to perform work for a school in a position involving direct contact with children, the independent contractor shall inform the school of any instance known to the independent contractor in which the employee:

(i) was the subject of any abuse or sexual misconduct investigation by any employer, State licensing agency, law enforcement authority or child protective services agency, unless such investigation resulted in a finding that allegations are false;

(ii) has ever been disciplined, discharged, non-renewed, removed from a substitute list, asked to resign from employment, resigned from or otherwise separated from any employment while allegations of abuse or sexual misconduct as described in subparagraph (i) were pending or under investigation, or due to an adjudication or findings of abuse or sexual misconduct; or

(4) The independent contractor may not assign the employee to perform work for the school in a position involving direct contact with children where the school objects to the assignment after being informed of an instance of abuse or sexual misconduct.

(5) An applicant who has once undergone the employment history review required and seeks to transfer to or provide services to another school in the same district, diocese or religious judicatory or established and supervised by the same organization shall not be required to obtain additional reports before making such transfer.

(k)(1) An employer, school, school administrator or independent contractor who in good faith provides information or records including personnel records about a current or former employee’s job performance and professional conduct to a prospective school employer or to the department of elementary and secondary education shall be immune from criminal and civil liability for the disclosure or any consequences of the disclosure, unless the information or records were provided with the knowledge that they were false or misleading. Such immunity shall be in addition to and not in limitation of any other immunity provided by law or any absolute or conditional privileges applicable to such disclosures by virtue of the circumstances or the applicant's consent thereto.

(2) Except where the laws of other states prevent the release of the information or records requested, or disclosure is restricted by the terms of a contract entered into prior to the effective date of this section, the willful failure of a former employer, school entity, school administrator or independent contractor to respond or provide the information and records as requested may result in civil penalties, and professional discipline where appropriate.

(3) Notwithstanding any provision of law to the contrary, an employer, school, school administrator, independent contractor or applicant shall report and disclose in accordance with this section all relevant information, records and documentation that may otherwise be confidential under section 10 of chapter 66.

(4) A school or independent contractor may not hire an applicant who does not provide the information required under subsection (a)(2) for a position involving contact with children.

(l) Nothing in this section shall be construed:

(1) To prevent a prospective employer from conducting further investigations of prospective employees or from requiring applicants to provide additional background information or authorizations beyond what is required under this section, nor to prevent a former employer from disclosing more information than what is required under this section.

(2) To relieve a school, school administrator or independent contractor of its legal responsibility to report suspected incidents of abuse in accordance with the provisions of section 51A of chapter 119 or misconduct by a licensed educator in accordance with the reporting requirements of the department of elementary and secondary education.

(3) To relieve a school, school administrator or independent contractor of its legal responsibility to report suspected incidents of professional misconduct in accordance with chapter 119, section 51A or misconduct by a licensed educator in accordance with the reporting requirements of the department of elementary and secondary education.

(4) To prohibit the right of the exclusive representative pursuant to chapter 150E to challenge the validity of an employee’s termination or discipline under a collective bargaining agreement or any relevant statute

(m)(1) The office of the attorney general shall have jurisdiction to determine willful violations of this section and may, following a hearing, assess a civil penalty not to exceed ten thousand dollars ($10,000). School entities shall be barred from contracting with an independent contractor who is found to have willfully violated the provisions of this section. Willful violations of the provisions of this section shall be reported to the relevant licensing authority.

(2) Notwithstanding any other provision of law to the contrary, the department of elementary and secondary education shall report all willful violations of the provisions of this sections to the National Association of State Directors of Teacher Education and Certification Clearinghouse or any national databases serving the same purpose, all information required for participation in such a clearinghouse.

Section 6. The board of education may promulgate regulations for implementation and enforcement of this chapter. Upon release of the proposed regulations, the board shall file a copy of the regulations with the clerks of the house of representatives and the senate, who shall forward the regulations to the joint committee on education. Within 30 days of the filing, the committee may hold a public hearing and issue a report on the regulations and file the report with the board. The board, pursuant to applicable law, may adopt final regulations making revisions to the proposed regulations as it deems appropriate after consideration of the report and shall file a copy of the final regulations with the chairpersons of the joint committee on education and, not earlier than 30 days after the filing, the board shall file the final regulations with the state secretary.

Section 7. No employer shall be liable for injury, loss of property, personal injury or death caused by an act or omission of a public employee while acting in the scope of the public employee’s employment and arising out of the implementation of this chapter. This chapter shall not be construed as creating or imposing a specific duty of care.

SECTION 3. Subsection (a) of section 51A of chapter 119 of the General Laws, as appearing in the 2016 Official Edition, shall be amended by inserting after the word “neglect.”, in line 19, the following:-

A school or mandated reporter who has reasonable cause to believe that a person who is alleged to have sexually abused a child in the past, presently represents a credible threat to a child under the age of eighteen years, shall have the same reporting obligations under this section.

Name:	District/Address:
Joan B. Lovely	Second Essex
Bradley H. Jones, Jr.	20th Middlesex	1/28/2019
Patrick M. O'Connor	Plymouth and Norfolk	1/29/2019
Ryan C. Fattman	Worcester and Norfolk	1/30/2019
Peter J. Durant	6th Worcester	1/30/2019
Andres X. Vargas	3rd Essex	1/31/2019
Elizabeth A. Poirier	14th Bristol	1/31/2019
Michael O. Moore	Second Worcester	2/1/2019
Marjorie C. Decker	25th Middlesex	2/1/2019
Sean Garballey	23rd Middlesex	2/1/2019
Julian Cyr	Cape and Islands	2/4/2019
Joanne M. Comerford	Hampshire, Franklin and Worcester	2/4/2019