Amendment #807 to H.3400

Amendment #807 to H3400

Background Checks Law Revisions

Ms. Peisch of Wellesley moves to amend the bill by striking out sections 12 and 13 in their entirety; and further moves to amend the bill by adding the following sections:

“SECTION XXXX. Section 167A of chapter 6 of the General Laws, as appearing in the 2012 Official Edition, is hereby amended by inserting after the last sentence in subsection (e) the following words:- “(iii) the collection, storage, access, dissemination, content organization and use of fingerprint-based checks of the state and national criminal history databases”.

SECTION YYYY. Section 1 of chapter 459 of the Acts of 2012 is hereby amended by striking out Section 1 in its entirety and inserting in place thereof the following section:-

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 adding the following paragraphs:-

(a)(i) As part of the department’s licensing and background record check process, the department shall conduct fingerprint-based checks of the state and national criminal history databases, as authorized by Public Law 92-544, before issuing any license. The 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. The fingerprint-based checks shall also be required for any household member, age 15 or older, or person regularly on the premises, age 15 or older, of applicants for family child care licensure and for all in-home non-relative department funded caregivers. Authorized department staff may receive all criminal offender record information and the results of checks of state and national criminal history databases, under Public Law 92-544, in accordance with the law. When the department obtains the results of checks of state and national criminal history databases, it shall treat the information according to sections 167 through 178, inclusive, of chapter 6 and the regulations thereto regarding criminal offender record information.

(a)(ii) As part of the department’s licensing and background record check process, the department shall conduct fingerprint-based checks of the state and national criminal history databases, as authorized by Public Law 92-544, to determine the suitability of all applicants for employment, interns, or volunteers who have the potential for unsupervised contact with children in any department licensed or funded program. The fingerprint-based checks shall also be required to determine the suitability of any individual who provides transportation services on behalf of any department licensed or funded program. Authorized department staff may receive all criminal offender record information and the results of checks of state and national criminal history databases, under Public Law 92-544, in accordance with the law. When the department obtains the results of checks of state and national criminal history databases, it shall treat the information according to sections 167 through 178, inclusive, of chapter 6 and the regulations thereto regarding criminal offender record information.

(a)(iii) As part of the department’s licensing and background record check process, the department shall conduct fingerprint-based checks of the state and national criminal history databases, as authorized by 42 U.S.C. section 16962, for all applicants to be adoptive or foster parents and their household members age 15 or older. Authorized department staff may receive all criminal offender record information and the results of checks of state and national criminal history databases, under 42 U.S.C. section 16962, in accordance with the law. When the department obtains the results of checks of state and national criminal history databases, it shall treat the information according to sections 167 through 178, inclusive, of chapter 6 and the regulations thereto regarding criminal offender record information.

(a)(iv) As part of the department’s licensing and background record check process, the department shall obtain from the sex offender registry board all current sex offender registration information associated with the address of the center, home, program or facility.

SECTION ZZZZ. Section 2 of chapter 459 of the Acts of 2012 is hereby amended by striking out Section 2 in its entirety and inserting in place thereof the following section:-

Section 2. Subsection (b) of said section 7 of chapter 15D, as so appearing, is hereby amended by adding the following paragraphs:-

As part of the department’s approval process, the department shall conduct fingerprint-based checks of the state and national criminal history databases, under Public Law 92-544, before issuing any approval. The fingerprint-based checks of the state and national criminal history databases shall also be conducted, under Public Law 92-544, to determine the suitability of all applicants for employment, interns, or volunteers who have the potential for unsupervised contact with children in any department approved program. The fingerprint-based checks shall also be required to determine the suitability of any individual who provides transportation services on behalf of any department approved program. Authorized department staff may receive all criminal offender record information and the results of checks of state and national criminal history information databases, under this subsection, in accordance with the law. When the department obtains the results of checks of state and national criminal information databases, it shall treat the information according to sections 167 through 178, inclusive, of chapter 6 and the regulations thereto regarding criminal offender record information.

As part of the department’s approval process, the department shall obtain from the sex offender registry board all current sex offender registration information associated with the address of the center, home, program or facility before issuing any approval.

SECTION AAAA. Section 3 of chapter 459 of the acts of 2012 is hereby stricken in its entirety.

SECTION BBBB. Subsection (d) of section 8 of chapter 15D of the General Laws, as amended by section 4 of chapter 459 of the acts of 2012, is hereby amended by inserting in the last sentence of section 4 after the words “42 U.S.C section 16962” the following words:- “for potential adoptive and foster parents and their household members age 15 or older; Public Law 92-544 for all licensing matters as set forth by the department and for all applicants for employment, interns or volunteers in any department licensed, funded or approved program”.

SECTION CCCC. Section 8 of chapter 15D of the General Laws, as amended by section 5 of chapter 459 of the acts of 2012, is hereby amended by striking out the first paragraph and inserting in place thereof the following paragraph:-

(j) Fingerprints, as referenced in subsections (a) and (b) of section 7 and subsection (d) of this section, shall 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 by the Federal Bureau of Investigation, the state identification bureau, and the department of criminal justice information services for the purpose of assisting the department in its review of suitability for initial or continued licensure, certification, or approval. The department of criminal justice information services may disseminate the results of a national criminal history check to the department of early education and care to determine the suitability of : (i) any current holder of or applicant for a family child care, small group and school age, large group and school age, and residential and placement license, or family child care assistant certificate; (ii) all current and prospective employees in any department licensed, funded or approved program, who have the potential for unsupervised contact with children; (iii) all household members, age 15 or older, or persons regularly on the premises, age 15 or older, of current family child care providers and applicants for family child care licensure; (iv) all in-home non-relative department funded caregivers; (v) all adoptive or foster parent applicants and their household members age 15 or older; and (vi) any individual who provides transportation services on behalf of any department licensed, funded or approved program. If the department receives information from a fingerprint based background check that does not include any final disposition or is otherwise incomplete, the department may request that an applicant, either new or renewing, provide additional information to assist the department in determining the suitability of the individual for licensure, certification, approval, funding or employment.

If a department licensed, funded or approved program or a provider of transportation services on behalf of any department licensed, funded or approved program determines it is necessary to hire an individual who may have the potential for unsupervised contact with children, the employer may employ that individual as a conditional employee prior to the department receiving the results of a state and national fingerprint-based criminal background check if all of the following apply:

(a)The program or transportation provider has received the results of a state Criminal Offender Record Information (CORI) check and a Department of Children and Families (DCF) background record check and has approved the individual to be hired after review of the CORI and DCF checks;

(b)Notwithstanding any laws to the contrary, the individual signs a statement identifying all crimes, if any, for which he or she has been convicted, and agreeing that if the results of the state and national fingerprint-based criminal check reveal information inconsistent with the individual’s statement, his or her employment may be terminated;

(c)If registration for a state and national fingerprint-based criminal check is not yet available, the individual agrees to register for a state and national fingerprint-based criminal check as soon as it becomes available; and

(d)The individual does not have any unsupervised contact with children.

SECTION DDDD. Section 8 of chapter 15D of the General Laws, as amended by section 5 of chapter 459 of the acts of 2012, is hereby amended by striking out the third paragraph beginning with the words “All persons required to submit fingerprints” and inserting in place thereof the following paragraph:-

All persons required to submit fingerprints pursuant to this chapter, including but not limited to, (i) any current holder of or applicant for a family child care, small group and school age, large group and school age, and residential and placement license, or family child care assistant certificate; (ii) all current and prospective employees in any department licensed, funded or approved program, who have the potential for unsupervised contact with children; (iii) all household members, age 15 or older, or persons regularly on the premises, age 15 or older, of current family child care providers and applicants for family child care licensure; (iv) all in-home non-relative department funded caregivers; (v) all adoptive or foster parent applicants and their household members age 15 or older; and (vi) any individual who provides transportation services on behalf of any department licensed, funded or approved program, 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 fee shall not exceed $35 per person. The fee may increase accordingly if the Federal Bureau of Investigation increases its fingerprint background check service fee. The department licensed, funded or approved programs may reimburse applicants for employment for all or part of the fee on the grounds of financial hardship. Any fees collected from fingerprinting activity under this chapter shall be deposited into the Fingerprint-Based Background Check Trust Fund, established under section 2HHHH of chapter 29.

SECTION EEEE. Section 2HHHH of Chapter 29 of the General Laws, as amended by section 6 of chapter 459 of the acts of 2012, is hereby amended by striking out the first paragraph in its entirety and inserting in place thereof the following paragraphs:-

Section 2HHHH. There shall be established and set up on the books of the commonwealth a separate fund to be known as the Fingerprint-Based Background Check Trust Fund, which will consist of all fees collected for the purposes enumerated in chapter 459 of the acts of 2012. Amounts credited to the fund shall be available, without further appropriation, to the executive office of public safety and security to carry out fingerprint-based state and national criminal background checks for the purposes of employment, professional licensure and other non-criminal justice purposes.

For the purpose of accommodating discrepancies between the receipt of revenue and related expenditures for implementing fingerprint-based checks of the state and national criminal history databases, as authorized by chapter 459 of the acts of 2012, the executive office of public safety and security may incur expenses and the comptroller may certify for payment amounts not to exceed the most recent revenue estimate, provided further that the fund shall be in balance by the end of the fiscal year. Revenues deposited in the fund that are unexpended at the end of the fiscal year shall not revert to the General Fund and shall be available for expenditure in the following fiscal year.

SECTION FFFF. Section 38R of Chapter 71 of the General Laws, as amended by section 7 of chapter 459 of the acts of 2012, is hereby amended by striking out the first paragraph and inserting in place thereof the following paragraph:-

Section 38R. 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 special education school program approved under chapter 71B, 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 within the school district, including any individual who regularly provides school related transportation to children. Said school committee, superintendent or principal or other administrator shall also have access to and may obtain all criminal offender record information for any subcontractor or laborer commissioned by the school committee or school or employed by the city or town to perform work on school grounds, who may have direct and unmonitored contact with children.

SECTION GGGG. Section 38R of Chapter 71 of the General Laws, as amended by section 7 of chapter 459 of the acts of 2012, is hereby amended by striking out the second paragraph and inserting in place thereof the following paragraph:-

The 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 special education school program approved under chapter 71B, shall also obtain a state and national fingerprint-based criminal background check, under 42 U.S.C. section 16962, to determine the suitability of current and prospective school employees who may have direct and unmonitored contact with children. For the purpose of this section, employees shall include any apprentice, intern, or student teacher who may have direct and unmonitored contact with children. The school committee shall only obtain a state and national fingerprint-based criminal background check for current and prospective employees for whom the school committee has direct hiring authority. The superintendent, principal or other administrator shall also obtain a state and national fingerprint-based criminal background check for any individual who regularly provides school related transportation to children. Said school committee, superintendent or principal or other administrator may obtain a state and national fingerprint-based criminal background check, as authorized by 42 U.S.C. section 16962, for any volunteer or subcontractor or laborer commissioned by the school committee or school or employed by the city or town to perform work on school grounds, who may have direct and unmonitored contact with children. Fingerprints shall 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 by the Federal Bureau of Investigation, the state identification bureau, and the department of criminal justice information services for the purpose of assisting employers authorized under this chapter to ensure the continued suitability of those individuals. The department of criminal justice information services may disseminate the results of a national criminal history check to: a school committee, superintendent, principal or their designees, to determine the suitability of current and prospective employees of the school department; and to the department of elementary and secondary education to determine the suitability of applicants for licensure and licensed educators who may have direct and unmonitored contact with children. The department of criminal justice information services may disseminate to school committees only those results for current and prospective employees for whom the school committee has direct hiring authority.

SECTION HHHH. Section 38R of Chapter 71 of the General Laws, as amended by section 7 of chapter 459 of the acts of 2012, is hereby amended by striking out the first sentence of paragraph four beginning with “The board of early education and care shall” and inserting in place thereof the following sentences:-

The board of elementary and secondary education 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. These regulations shall address the circumstances under which a school employer may rely on a suitability determination made by a previous Massachusetts school employer or the department of elementary and secondary education, in lieu of obtaining a new national criminal history background check.

SECTION IIII. Section 38R of Chapter 71 of the General Laws, as amended by section 7 of chapter 459 of the acts of 2012, is hereby amended by inserting in the second sentence of the fourth paragraph after the word “section 16962”, the following words:- “and Public Law 92-544”.

SECTION JJJJ. Section 38R of Chapter 71 of the General Laws, as amended by section 7 of chapter 459 of the acts of 2012, is hereby amended by striking the last sentence in the third paragraph and replacing it with the following sentence:-

The regulations may reflect a phased-in schedule for the fingerprint-based background checks of individuals whose employment or service began prior to the 2013-2014 school year.

SECTION KKKK. Section 38R of Chapter 71 of the General Laws, as amended by section 7 of chapter 459 of the acts of 2012, is hereby amended by striking out, in the last sentence of section 7, the words “The fee” and inserting in place thereof the following words:- “Any fees collected from fingerprinting activity under this chapter”.

SECTION LLLL. Section 38R of chapter 71 of the General Laws, as amended by section 8C of chapter 459 of the acts of 2012, is hereby amended by striking out Section 8C in its entirety and inserting in place thereof the following section:-

Section 8C. Notwithstanding the provisions of chapter 151B of the General Laws, if a school employer receives criminal record information that includes no disposition or is otherwise incomplete, the school employer may request that an individual provide additional information to assist the school employer in determining fitness for direct and unmonitored contact with children.

For the purposes of this section, a “conditional employee” is an individual who may have direct and unmonitored contact with children who a school employer hires without first receiving and reviewing the results of a national fingerprint-based criminal history check because the employer determines that hiring the individual is necessary. School employers may hire conditional employees under the following circumstances:

1)Until the Commonwealth has fully implemented a system for forwarding fingerprints to the Federal Bureau of Investigation for a national criminal history check and providing the results of those checks to school employers, school employers may hire conditional employees if both of the following apply:

(a)The school employer has received from the Massachusetts department of criminal justice information services all available criminal offender record information on that individual; and

(b)Notwithstanding any laws to the contrary, the individual signs a statement identifying all crimes, if any, other than juvenile or sealed convictions, of which he or she has been convicted, and agreeing that if the national criminal records check discloses information that is inconsistent with the individual’s statement, his or her employment may be terminated at the option of the employer.

2)Once the Commonwealth has fully implemented a system for forwarding fingerprints to the Federal Bureau of Investigation for a national criminal history check and providing the results of those checks to school employers, school employers may hire conditional employees if all of the following apply:

(a)The school employer has received from the Massachusetts department of criminal justice information services all available criminal offender record information on that individual;

(c)The individual has registered for a national fingerprint-based criminal history check; and

(d)The school employer is hiring the individual in the course of a school year or within 30 days before the beginning of a school year.

Once the Commonwealth has fully implemented a system for forwarding fingerprints to the Federal Bureau of Investigation for a national criminal history check and providing the results of those checks to school employers, school employers shall require conditional employees hired pursuant to part (1) above to submit fingerprints for a national criminal history check pursuant to this section.

SECTION MMMM. Section 9 of chapter 456 of the Acts of 2012 is hereby amended by striking out section 9 in its entirety and inserting in place thereof the following section:-

Section 9. Sections 1 and 2 of this act shall apply to all new applications for licensure, certification or approval, for all household members, age 15 or older, or persons regularly on the premises, age 15 or older, of applicants for family child care licensure, for all applicants to be adoptive or foster parents and their household members age 15 or older, and for all in-home non-relative department funded caregiver applicants, submitted on or after September 1, 2013. All individuals who are currently licensed, certified or approved by the department of early education and care, all household members, age 15 or older, or persons regularly on the premises, age 15 or older of family child care licensees, as well as all in-home non-relative department funded caregivers, shall be required to comply with the requirements of this act upon renewal of licensure, certification, approval or funding, no later than September 1, 2016. Sections 1 and 2 of this act shall also apply to prospective employees in any department of early education and care licensed, funded or approved program who have the potential for unsupervised contact with children, including those providing transportation services on behalf of any department licensed, funded or approved program, hired to begin employment on or after September 1, 2013. Employees in any department of early education and care licensed, funded or approved programs who have the potential for unsupervised contact with children, including those providing transportation services on behalf of any early education and care department licensed, funded or approved program hired prior to that date shall submit fingerprints for state and national criminal history checks no later than September 1, 2016.

Should a state and national fingerprint-based criminal check not be available through the department by September 1, 2013, then all new applications for licensure, certification or approval, all household members, age 15 or older, or persons regularly on the premises, age 15 or older, of applicants for family child care licensure, all applicants to be adoptive or foster parents and their household members age 15 or older, and all in-home non-relative department funded caregiver applicants who apply on or after September 1, 2013, must undergo such a check as soon it becomes available.

Should a state and national fingerprint-based criminal check not be available at the time an application for renewal of a department issued license, certificate, approval or funding request is due, then the applicant for renewal must undergo such a check as soon it becomes available but not later than September 1, 2016.

Should a state and national fingerprint-based criminal check not be available by September 1, 2013, then any prospective employee in any department of early education and care licensed, funded or approved program who has the potential for unsupervised contact with children, including those providing transportation services on behalf of any department licensed, funded or approved program, hired to begin employment on or after September 1, 2013, will be hired conditionally as set forth in Section 6 of this act.

Should a state and national fingerprint-based criminal check not be available by September 1, 2013, then any employee in any department licensed, funded or approved program who has the potential for unsupervised contact with children, including those providing transportation services on behalf of any department licensed, funded or approved program, hired prior to September 1, 2013, who is undergoing a department required periodic CORI and DCF background record checks investigation, may continue employment conditionally as set forth in Section 6 of this act.

Section 7 of this act shall apply to all individuals in K-12 education whose employment or service begins in the 2013-2014 school year. Individuals in K-12 education whose employment or service began before the 2013-2014 school year shall submit fingerprints for state and national criminal history checks on a phased-in basis prior to the beginning of the 2016-2017 school year”.