Session Law

2014

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Chapter 234 AN ACT REQUIRING NATIONAL 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.  Chapter 19B of the General Laws is hereby amended by adding the following 2 sections:-
     Section 19.  (a) As part of the department’s licensure and background record check process, the department, prior to issuing any license, shall conduct fingerprint-based checks of the state and national criminal history databases, as authorized by 28 CFR 20.33 and Public Law 92-544. The fingerprint-based checks shall be conducted on any applicant seeking a license for a facility which offers to the department’s client population residential or day care services or any other agency covered pursuant to section 15 that is licensed or funded by the department and serves the department’s client population. The fingerprint-based checks shall also be required for any household member, age 15 or older, or any person regularly on the premises, age 15 or older, of applicants for residential care service licensure, whether or not they are 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 said Public Law 92-544. When the department obtains the results of checks of state and national criminal history databases, it shall treat the information according to sections 167 to 178, inclusive, of chapter 6 and the regulations thereunder regarding criminal offender record information.
     (b)  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 28 CFR 20.33 and Public Law 92-544, to determine the suitability of all current and prospective employees, who have the potential for unsupervised contact with persons with an intellectual or developmental disability in any department-licensed or funded program.  For the purpose of this section, employees shall include any apprentice, intern, transportation provider, volunteer or sub-contractor who may have direct and unmonitored contact with a person with an intellectual or developmental disability. 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 said Public Law 92-544. When the department obtains the results of checks of state and national criminal history databases, it shall treat the information according to sections 167 to 178, inclusive, of chapter 6 and the regulations thereunder regarding criminal offender record information.
     (c)  As part of the department’s approval process, the department, prior to issuing any approval, shall conduct fingerprint-based checks of the state and national criminal history databases, authorized by 28 CFR 20.33 and Public Law 92-544, that are required under this subsection. The fingerprint-based checks of the state and national criminal history databases shall be conducted, under said Public Law 92-544, to determine the suitability of all applicants for employment, interns and volunteers who have the potential for unsupervised contact with persons with an intellectual or developmental disability 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 said Public Law 92-544. When the department obtains the results of checks of state and national criminal information databases, it shall treat the information according to sections 167 to 178, inclusive, of chapter 6 and the regulations thereunder regarding criminal offender record information. 
     Section 20.  (a) Each person providing residential or support services with the potential for unsupervised contact with persons with an intellectual or developmental disability in any department program or its contracted agency vendor programs, as well as any household members, age 15 or older, or persons regularly on the premises of residential facilities, age 15 or older, shall be subject to a criminal offender record information check pursuant to 28 CFR 20.33 and Public Law 92-544. All applicants for a department issued license and all current and prospective employees, interns and volunteers in any department-licensed, department-funded or department-approved program shall be subject to a fingerprint-based check of the state and national criminal history databases pursuant to said Public Law 92-544.  
     (b)  Fingerprints, as referenced in section 19, 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 state 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 section and the department of criminal justice information services to assist the department in its review of suitability for initial or continued employment, licensure, certification or approval. The department of criminal justice information services may disseminate the results of a state and national criminal history check to the department to determine the suitability of: (i) all current and prospective employees in any department program or any department contracted agency vendor programs, who have the potential for unsupervised contact with persons with an intellectual or developmental disability; (ii) all household members, age 15 or older, or all persons regularly on the premises, age 15 or older, of current residential care providers that are funded by the department or its contracted agency vendor programs; (iii) all sub-contractors, interns, volunteers or any other individual employed or retained by the department or its contracted agency vendor programs who has the potential for unsupervised contact with persons with an intellectual or developmental disability; (iv) any individual who provides transportation services on behalf of the department or its contracted agency vendor programs; and (v) any applicant seeking a license from the department for a residential or day care facility that serves the department’s population. If the department receives information from a fingerprint-based 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.
     (c)  Department-licensed, funded or approved programs and providers of transportation services on behalf of any department-licensed, funded or approved program may hire individuals without first obtaining the results of a state and national fingerprint-based criminal history check.
The department shall promulgate regulations necessary to carry out this subsection. The regulations shall address the circumstances under which a program or transportation provider may hire a conditional employee.
For the purposes of this subsection, “conditional employee” shall mean an individual who has the potential for unsupervised contact with persons with an intellectual or developmental disability and who is part of a department-licensed, funded or approved program or a provider of transportation services on behalf of any department-licensed, funded or approved program and was hired prior to the obtaining of the results of a state and national fingerprint-based criminal history check because the employer determined that hiring the individual was necessary.  
     (d)  The department of criminal justice information services shall disseminate the results of the criminal background check to the department. The department of criminal justice information services shall only disseminate information under this section that would otherwise be available to requesting entities under sections 167 to 178, inclusive, of chapter 6 and the regulations thereunder regarding criminal offender record information.
     (e)  All persons required to submit fingerprints under this section, including but not limited to: (i) all current and prospective employees, interns, sub-contractors and volunteers in any department program or any department contracted agency vendor program who have the potential for unsupervised contact with persons with an intellectual or developmental disability; (ii) all household members, age 15 or older, or all persons regularly on the premises, age 15 or older, of current residential care providers that are funded by the department or any of its contracted vendor agency programs;  (iii) any individual who provides transportation services on behalf of any department-licensed, funded or approved program; and (iv) any applicant seeking a license from the department for a residential or day care facility that serves the department’s client population, shall pay a fee to be established by the secretary of administration and finance, in consultation with the secretary of public safety and the commissioner of developmental services, to offset the costs of operating and administering a fingerprint-based criminal background check system.  The fee shall not exceed $45 per person.  The secretary of administration and finance, in consultation with the secretary of public safety and the commissioner of developmental services, may increase the fee 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, internship or volunteer positions, 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 in section 2HHHH of chapter 29.
     (f)  When the department receives the results of the national criminal background checks, it shall treat the information according to the department’s regulations regarding criminal offender record information. Notwithstanding subsections 9 and 9 ½ of section 4 of chapter 151B, the department of criminal justice information services shall only disseminate information under this section that would otherwise be available to requesting entities under the department’s regulations related to criminal offender record information. The employing agency, program or organization shall notify the commissioner of developmental services of any criminal record information relevant to the fitness for employment of any applicant for employment with persons with an intellectual or developmental disability.
     (g)  The department shall promulgate regulations necessary to carry out this section.
     SECTION 2.  Sections 19 and 20 of chapter 19B of the General Laws shall apply to all new applicants for licensure, certification or approval, to any facility which offers to the public residential or day care services to a person with an intellectual disability or any other applicant licensed or regulated by the department of developmental services under section 15 of said chapter 19B, whose applications are submitted on or after January 1, 2016.
     SECTION 3.  Section 20 of chapter 19B of the General Laws shall apply to prospective employees in any department of developmental services program or any of its contracted agency vendor programs who have the potential for unsupervised contact with persons with an intellectual or developmental disability, including those providing transportation services on behalf of any department-licensed, funded or approved program, hired to begin employment on or after January 1, 2016.
     SECTION 4.  All programs or agencies who are currently licensed, certified or approved by the department of developmental services, licensed or regulated by section 15 of chapter 19B of the General Laws, shall comply with the requirements of this act upon renewal of licensure, certification, approval or funding, on or before January 1, 2019.
     SECTION 5.  Employees in any department of developmental services program or any of its contracted agency vendor programs who have the potential for unsupervised contact with persons with an intellectual or developmental disability, including those providing transportation services on behalf of any department program or its contracted agency vendor programs hired to begin employment prior to January 1, 2016, shall submit fingerprints for state and national criminal history checks on or before January 1, 2019, on a phased-in schedule developed by the department of developmental services through regulation.

Approved, August 5, 2014.