606 CMR 14.00: Criminal Offender and Other Background Record Checks - Emergency Regulations Policy and Research Committee Meeting December 2, 2013 1

Background Record Checks Processed by EEC MA Criminal Offender Record Information Checks (CORI) Department of Children and Families (DCF) Background Record Check NEW - Sex Offender Registry Information (SORI) checks with the MA Sex Offender Registry Board (SORB) database NEW - Fingerprint-based checks of the state and national (Federal Bureau of Investigation) criminal history databases CORI - Information regulated by the Department of Criminal Justice Information Services (DCJIS) regarding the criminal histories of persons within the MA Court System, including adult/youthful offender convictions, non-convictions and pending offenses, as well as sealed, juvenile, civil, or non-incarcerable offenses DCF - 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.

Emergency Regulations Are NOW Required To comply with the legislative mandates of Chapter 459 of the Acts of 2012 as amended by Chapter 77 of the Acts of 2013 To establish processes for conducting SORI and fingerprint-based checks To provide guidance with respect to review of findings and dissemination of results

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 fingerprint-based check 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 an established period of time. Dissemination of any information related to EEC’s review of SORI and fingerprint check information, other than EEC’s approval for hire, is prohibited.

Proposed Regulatory Changes to Address SORI and Fingerprint Checks – cont’d Background Record Check Frequency CORI and DCF checks must be run whenever an initial offer is made and at least every 3 years for those employees who have maintained continuous employment, unless the employer determines a greater frequency. SORI checks must be run whenever an employment offer is made and shall be run periodically by EEC. 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 MA during their employment period; candidates who have disclosed new criminal charges; and candidates who have a break in employment with an EEC licensed, approved or funded program of one or more years. All individuals who began work or applied for a license or funding before 9/1/2013 must complete fingerprint checks by 9/1/2016 on a schedule to be developed by EEC.

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 (if not available, the Hiring Authority may seek assessment of the Candidate’s risk of harm from a qualified mental health professional) If written documentation is 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 suitable for hire. Discretionary Review will take the following into consideration: (1) Time since the classification as a Sex Offender; (2) Age of the candidate at the time of the classification; (3) Whether the candidate was determined to be sexually dangerous; (4) Seriousness and specific circumstances of the underlying offense(s); (5) Relationship of underlying the criminal act to the nature of the work to be performed; (6) The number of underlying offenses; (7) Any relevant evidence of rehabilitation or lack thereof; and (8) Any other relevant information, including information submitted by the candidate.

Proposed Regulatory Changes to Address SORI and Fingerprint Checks – cont’d Findings From SORI Checks – cont’d No Candidate may be hired in any capacity nor begin work until the SORI check is completed. 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. Note: Since April 2013, EEC has submitted monthly address lists of EEC licensed programs to SORB. Last month, EEC submitted approximately 12,000 names of individuals newly hired or employed in EEC licensed or funded programs for a SORI check.

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 CORI and DCF checks have been approved by the Hiring Authority and who has been deemed suitable by EEC following a SORI check, to begin conditional employment and have unsupervised contact with children at the discretion of the program. Following review of the FBI data, EEC will notify the hiring authority whether or not the candidate is suitable for hire.

Proposed Regulatory Changes to Address SORI and Fingerprint Checks – cont’d Findings From FBI Background Record Checks – cont’d If the Candidate is hired, the Hiring Authority must document in the employee’s personnel file the date on which the EEC suitability decision was received and must notify EEC of the date on which the employee began employment. If EEC deems the candidate unsuitable, the Hiring Authority must terminate the conditional employee's employment within fourteen (14) days of such notice, unless EEC informs to terminate sooner.

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, approved 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, approved 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 EEC renders a suitability decision related to SORI and fingerprint-based check for all personnel providing transportation services to the program.

Proposed Regulatory Changes to Address Gap in Existing Regulations Notice of a 51A report EEC shall perform an investigation if it receives credible notification that a 51A report has been filed against a 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, the family child care licensee, assistant, and/or in-home non-relative caregiver must 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.

Next Steps Tasks Timeline Anticipated Board Vote to Approve Emergency Regulations December 10, 2013 Public Comment Period on Emergency Regulations Anticipated Start Date mid-December 2013 through end-January 2014 Implementation of new BRC requirements On-going with full implementation anticipated this Winter Review of Public Comment February 2014 Final Approval of New BRC Regulations Anticipated March 11, 2014 Publication of Final Regulations in Secretary of State Register Anticipated March 28, 2014