606 CMR 14.00: Criminal Offender and Other Background Record Checks - Emergency Regulations

1. 606 CMR 14.00: Criminal Offender and Other Background Record Checks - Emergency Regulations Policy and Research Committee Meeting November 4, 2013 1

2. What are the Purposes of Background Record Checks? • Establish standardized procedures for EEC licensed and/or funded programs regarding the review of criminal records and other background information of candidates or incumbents for employment or regular volunteer positions. • Ensure that employees or other persons regularly providing child care or support services with potential for unsupervised contact with children in any program or facility licensed and/or funded by EEC are appropriate for serving in their positions.

3. What Background Record Checks are Currently Processed by EEC? • MA Criminal Offender Record Information Checks (CORI) – • Information regulated by the Department of Criminal Justice Information Services (DCJIS) regarding the criminal histories of persons within the MA Court System. • Produces adult/youthful offender convictions, non-convictions and pending offenses. Indicates any sealed, juvenile, civil, or non-incarcerable offenses (which EEC must then request). • Department of Children and Families (DCF) Background Record Check - • Check of the DCF Central Registry and Registry of Alleged Perpetrators to determine if an individual has been named as a person responsible for the abuse or neglect of a child in a supported 51B Report.

4. Chapter 459 of the Acts of 2012 (amended by Chapter 77 of the Acts of 2013) • New law broadening the scope of EEC’s existing background record check authority – effective September 1, 2013 • Requires and authorizes EEC to conduct fingerprint-based checks of the state and national (Federal Bureau of Investigation) criminal history databases • Requires EEC to conduct Sex Offender Registry Information (SORI) checks with the MA Sex Offender Registry Board (SORB) database

5. Emergency Regulations Are NOW Required • Allow EEC to comply with the legislative mandate as soon as possible • Establish processes for conducting SORI and fingerprint-based checks • Are effective immediately upon filing (public comments come later)

6. Proposed Regulatory Changes to Address SORI and Fingerprint Checks • As a condition of an offer of employment, an applicant must now satisfactorily complete a Background Record Check (BRC) investigation that includes the CORI, DCF, SORI and FBI record review. • Applicants will acknowledge that, as a pre-employment condition and periodically thereafter, personal data elements will be submitted to the SORB database, in order to determine if they are Level 2 or Level 3 Registered Sex Offenders. • Applicants will be required to consent to a state and national criminal history database review and submit to a fingerprint-based scan within fourteen (14) days of notification. • Dissemination of any information related to EEC’s review of SORI and fingerprint check information, other than EEC’s approval for hire, is prohibited.

7. Proposed Regulatory Changes to Address SORI and Fingerprint Checks – cont’d • Background Record Check Frequency • CORI and DCF checks must be run whenever an offer of employment or volunteer or intern position is made and at least every 3 years for those employees who have maintained continuous employment with the same employer unless the employer determines a greater frequency. • SORI checks must be run whenever an offer of employment or volunteer or intern position is made and shall be run periodically thereafter. • Fingerprint-based checks must be run with the same frequency as CORI and DCF checks with the following exceptions: • Candidates who have resided outside of Massachusetts • Candidates who have disclosed that new criminal charges have been filed against them. • Candidates who have a break in employment with an EEC licensed and/or funded program of one or more years

8. Proposed Regulatory Changes to Address SORI and Fingerprint Checks – cont’d • Findings From SORI Checks • If the SORI check indicates that a Candidate is a Level 2 and/or Level 3 Sex Offender, the finding will be treated as a presumptive disqualification. • A Candidate may submit written documentation from the Candidate’s Criminal Justice Official concluding that the Candidate does not pose an unacceptable risk of harm or, if not available, the Hiring Authority may seek assessment of the Candidate’s risk of harm from a qualified mental health professional who concludes in writing that the Candidate does not pose an unacceptable risk of harm. • If accepted, EEC would then perform a Discretionary Review. • After the Discretionary Review, EEC shall notify the Candidate and the Employer whether or not the Candidate is approved for hire.

9. Proposed Regulatory Changes to Address SORI and Fingerprint Checks – cont’d • Findings From SORI Checks – cont’d • No Candidate may be hired conditionally in any capacity nor begin work until the Hiring Authority receives EEC approval of the SORI check. • Should EEC determine, through an address match, that an individual who is a Level 2 or Level 3 Sex Offender resides in a family child home, EEC will immediately refer this information to the Licensing staff for appropriate action against the family child care license or application.

10. Proposed Regulatory Changes to Address SORI and Fingerprint Checks – cont’d • Findings From FBI Background Record Checks • Results of a Candidate’s FBI check will be provided to EEC. • EEC will review the results of the FBI check and will determine whether the Candidate poses an unacceptable risk to children. • The hiring authority may allow a Candidate, whose SORI check has been approved by EEC, and whose CORI and DCF checks have been approved by the Hiring Authority, to begin conditional employment and have unsupervised contact with children at the discretion of the program.

11. Proposed Regulatory Changes to Address SORI and Fingerprint Checks – cont’d • Findings From FBI Background Record Checks – cont’d • EEC will notify the hiring authority identified by the candidate whether or not the candidate is approved for hire. • If the Candidate is hired, the Hiring Authority must document in the employee’s personnel file the date on which the EEC approval was received and must notify EEC of the date on which the employee began employment. • If EEC disapproves the candidate, the Hiring Authority must terminate the conditional employee's employment within fourteen (14) days of such notice, unless informed by EEC to terminate sooner.

12. Proposed Regulatory Changes to Address SORI and Fingerprint Checks – cont’d • Background Record Checks for Transportation Service Personnel • Background Record Checks for transportation service personnel who are employees of an EEC-licensed or funded program will be conducted and documented in accordance with the provisions for candidates for employment with the potential for unsupervised contact with children. • EEC-licensed or funded programs that contract for the provision of transportation services must: • Include in their contract provisions for the review of CORI and DCF background records for all personnel providing transportation services to the program; and • Assure that a SORI and a fingerprint-based check is approved by EEC for all personnel providing transportation services to the program.

13. Proposed Regulatory Changes to Address Gap in Existing Regulations • Notice of a 51A report • EEC shall perform a new background check investigation if it receives credible notification that a 51A report has been filed against a currently licensed family child care licensee, a household member/person regularly on the premises of a family child care home, a family child care assistant, an employee, volunteer or intern, an in-home non-relative EEC-funded caregiver, or a driver or monitor. • EEC shall document the results for family child care and in-home non-relative care and shall forward the relevant information to the Hiring Authority for employees, volunteers, interns, and transportation providers. • If the 51B report is supported, EEC may request the family child care licensee, assistant, and/or in-home non-relative caregiver to immediately stop providing care, pending a complete BRC review. • An employee, volunteer, intern, or transportation provider shall not have any unsupervised contact with children pending a complete BRC review.

14. Proposed Policies and Procedures Until fingerprint processing becomes available: • All new or renewal applications submitted on or after September 1, 2013 may be approved “conditionally” based on CORI, DCF and SORI information. • All “conditional” licenses, employment decisions and informal child care approvals will be tracked by EEC and referred for fingerprint registration and processing as soon as it becomes available.

15. Proposed Policies and Procedures Once fingerprint processing is available: • All newapplicants for licensure or approval must complete full BRC review, including CORI, DCF, SORI and fingerprint (FBI) review before a license or approval will be issued. • All new applicants for employment, volunteers, interns and transportation providers, may be hired conditionally pending results of FBI fingerprint checks, if hiring is determined necessary, provided that the CORI, DCF and SORI checks are cleared. • All individuals who began work or applied for a license or funding before September 1, 2013 must complete fingerprint checks by September 1, 2016, on a schedule to be developed by EEC.

16. Next Steps