[January 21, 2013] On January 10, 2013, Governor Deval Patrick signed into law a bill that imposes new fingerprint-based background check requirements on public and private schools in Massachusetts, as well as programs licensed or funded by the Massachusetts Department of Early Education and Care. Schools must comply with the new requirements before the start of the 2013-2014 school year with respect to new employees. All current school employees must submit fingerprints for federal background checks within the next three years, before the beginning of the 2016-2017 school year.
I. Requirements Affecting All Massachusetts Public And Private Schools
The new law requires public and private schools in Massachusetts to obtain state and national fingerprint-based criminal background checks for the purpose of determining the suitability of current and prospective employees of the school who may have direct and unmonitored contact with children. The new law is silent with respect to whether such requirements include employees who do not and will not have direct and unmonitored contact with children. The law also requires schools to obtain state and national fingerprint-based criminal background checks for any individual who regularly provides school-related transportation to children, as well as any subcontractor or laborer commissioned by the school to perform work on school grounds who may have direct and unmonitored contact with children.
Under the new law, fingerprints will be submitted to the State Police for a state criminal history check and forwarded to the Federal Bureau of Investigation (“FBI”) for a national criminal history check. Applicants will be required to pay a fee associated with conducting fingerprint-based checks. The fee, which is still to be established, statutorily cannot exceed $35 for employees who are not certified educators and $55 for employees who are certified educators, provided that said fees may increase if the cost of FBI fingerprint checks increases. Schools may reimburse applicants for all or part of the fee on grounds of financial hardship. The new law is silent with respect to whether schools are permitted to reimburse applicants regardless of any financial hardship.
Public and private schools are required to continue obtaining all available Criminal Offender Record Information (“CORI”) from the Department of Criminal Justice Information Services (“DCJIS”) periodically, but not less often than every 3 years, for any current or prospective employee or volunteer of the school. While, in the past, schools were permitted to obtain CORI for certain subcontractors and laborers, the new law requires schools to obtain CORI from DCJIS at least every 3 years for any subcontractor or laborer commissioned by the school to perform work on school grounds who may have direct and unmonitored contact with children, including any individual who regularly provides school-related transportation to children.
II. Requirements Affecting Programs Licensed Or Funded By The Department of Early Education And Care
Under the law, as part of the Department of Early Education and Care’s (“EEC”) licensure and background check process, EEC is required to conduct state and national fingerprint-based checks before issuing any license. EEC must conduct such checks 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 new law also requires fingerprint checks for all household members or persons regularly on the premises, age 15 and older, of applicants for family child care licensure. Furthermore, the law requires fingerprint checks for all applicants for employment who have the potential for unsupervised contact with children, in any program licensed or funded by EEC. Additionally, fingerprint-based checks are required for all in-home non-relative EEC funded caregivers, and for all individuals applying to be adoptive or foster parents. Those required to submit to such checks will have to pay a fee, which is still to be established, but statutorily cannot exceed $35 unless the cost of FBI fingerprint checks increases. EEC funded or licensed programs may reimburse applicants for the fee on grounds of financial hardship. The new law is silent with respect to whether such programs are permitted to reimburse applicants regardless of any financial hardship.
III. Recommendations For Massachusetts Independent Schools and EEC Programs
In light of these new background check requirements, we recommend that all independent schools and EEC programs in Massachusetts take the following steps:
• Update the educational institution’s background check policy to incorporate these new requirements;
• Update the educational institution’s Criminal Record and Sex Offender Compliance package and written guidelines to incorporate the new requirements (including contractor and sub-contractor checks);
• Evaluate which subcontractors and laborers commissioned by the educational institution to perform work on school grounds may have direct and unmonitored contact with children; and
• Be prepared to revise policies and procedures as may be necessary once regulations are issued to reflect the new background check law.
Please do not hesitate to contact us if you have any questions about background check laws. Our attorneys have extensive experience in this developing area of the law, and we would be happy to help.