SB453 (2016) Detail

Relative to comprehensive criminal background checks for individuals in registered and licensed child day care agencies, child care institutions, and child care agencies.


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CHAPTER 158

SB 453-FN - FINAL VERSION

02/11/2016   0344s

05/05/2016   1900EBA

2016 SESSION

\t16-2748

\t05/04

 

SENATE BILL\t453-FN

 

AN ACT\trelative to comprehensive criminal background checks for individuals in registered and licensed child day care agencies, child care institutions, and child care agencies.

 

SPONSORS:\tSen. Stiles, Dist 24; Sen. D'Allesandro, Dist 20; Sen. Carson, Dist 14; Sen. Forrester, Dist 2; Rep. Balcom, Hills. 21; Rep. Cordelli, Carr. 4; Rep. Shaw, Hills. 16; Rep. Wall, Straf. 6; Rep. Gargasz, Hills. 27

 

COMMITTEE:\tEducation

 

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ANALYSIS

 

\tThis bill revises requirements for criminal background checks for individuals in registered and licensed child day care agencies, child care institutions, and child care agencies.

 

\tThe bill is a request of the department of health and human services.

 

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Explanation:\tMatter added to current law appears in bold italics.

\t\tMatter removed from current law appears [in brackets and struckthrough.]

\t\tMatter which is either (a) all new or (b) repealed and reenacted appears in regular type.

02/11/2016   0344s

05/05/2016   1900EBA\t16-2748

\t05/04

 

STATE OF NEW HAMPSHIRE

 

In the Year of Our Lord Two Thousand Sixteen

 

AN ACT\trelative to comprehensive criminal background checks for individuals in registered and licensed child day care agencies, child care institutions, and child care agencies.

 

Be it Enacted by the Senate and House of Representatives in General Court convened:

 

\t158:1  Child Day Care Licensing; State Registry and Criminal Records Check; Revocation of Registration and Withholding of State Funds.  Amend RSA 170-E:7, I to read as follows:

\t\tI.  Child day care providers who are required to be licensed or registered according to the provisions of this chapter shall, [no later than] prior to the date an [individual’s first day of employment, which] individual is responsible for the care of, or [having] has regular contact with children, and upon adding new household members or other individuals who will have regular contact with children, submit to the department, the names, birth names, birth dates, and addresses during the preceding 5 years of such individuals and other information required by the department as prescribed by rules adopted by the commissioner under RSA 541-A.

\t\tI-a.  The persons described in [this] paragraph I shall submit directly to the department of safety a notarized criminal history records release form, as provided by the New Hampshire division of state police, which authorizes the release of the person’s criminal records, if any, to the department.  The person shall [submit with the release form a complete set of fingerprints taken by] complete a Federal Bureau of Investigation fingerprint check using the Integrated Automated Fingerprint Identification System through a qualified law enforcement agency or an authorized employee of the department of safety.  The department of safety shall complete the criminal history records check and forward such record, if any, to the department.  In the event that the first set of fingerprints is invalid due to insufficient pattern, a second set of fingerprints shall be necessary to complete the criminal history records check.  If, after 2 attempts, a set of fingerprints is invalid due to insufficient pattern, the department may, in lieu of the criminal history records check, accept police clearances from every city, town, or county where the person has lived during the past 5 years.

\t158:2  Child Day Care Licensing; State Registry and Criminal Records Check; Revocation of Registration and Withholding of State Funds.  Amend RSA 170-E:7, II to read as follows:

\t\tII.(a) [The department shall,] For every name submitted on an application, in the registration process, and for each individual for whom information is required to be submitted pursuant to paragraph I, [review the names, birth names, birth dates, and current and previous addresses of] the department shall search for such persons against the [state registry of founded abuse and neglect reports] New Hampshire sex offender and abuse and neglect registries, the sex offender and abuse and neglect registries of each state where the individual resided in the past 5 years, and the National Sex Offender Registry.

\t\t\t(b)  The department of safety shall submit the [criminal history records release form] notarized criminal history record information authorization form to the New Hampshire division of state police, which shall conduct a criminal history records check through its records and through the Federal Bureau of Investigation.  Upon completion of the background investigation, the division of state police shall release copies of the criminal conviction records to the department.  The department shall maintain the confidentiality of all criminal history records information received pursuant to this paragraph.

\t\t\t(c)  The costs of criminal history record checks shall be borne by the child day care provider; provided, that the child day care provider may require an applicant to pay the actual costs of the criminal history check of the employee.

\t158:3  Child Day Care Licensing; State Registry and Criminal Records Check; Revocation of Registration and Withholding of State Funds.  RSA 170-E:7, II-a is repealed and reenacted to read as follows:

\t\tII-a.  An individual shall not be required to submit a request under paragraph I-a if:

\t\t\t(a)  In the previous 5 years, the individual submitted a state criminal records release form and fingerprints and completed a criminal records check under this section;

\t\t\t(b)  The individual is currently employed by a child care provider within the state, or has been separated from employment from a child care provider within the state for a period of not more than 180 consecutive days; and

\t\t\t(c)  The department made a determination that when the individual completed the criminal records check within the previous 5 years as described in this section, the individual was eligible for employment as provided in paragraphs III and IV.

\t158:4  Child Day Care Licensing; State Registry and Criminal Records Check; Revocation of Registration and Withholding of State Funds.  Amend RSA 170-E:7, III to read as follows:

\t\tIII.  The department shall make a determination regarding the individual’s eligibility for employment no later than 45 days from submission of all required information as described in paragraphs I and I-a.  If any individual whose name has been submitted for a check under this section is registered or required to be registered on a state sex offender registry or repository, or the National Sex Offender Registry, or has been convicted of a [violent or sexually-related crime against a child] felony consisting of murder, child abuse or neglect, a crime against a child including child pornography and trafficking, spousal abuse, a crime involving rape or sexual assault, kidnapping, arson, physical assault or battery, or a drug-related offense committed during the previous 5 years, or any other violent or sexually-related misdemeanor against a child, including child abuse, child endangerment, sexual assault, or a misdemeanor involving child pornography, or of a crime which shows that the person might be reasonably expected to pose a threat to a child, such as a violent crime or a sexually-related crime against an adult, the department shall:

\t\t\t(a)  If the individual is the applicant or owner, revoke or deny the license or permit, or withhold state funds if the child day care provider is not required to be licensed.

\t\t\t(b)  If the individual is a board member, household member, or child day care personnel, or any other individual having regular contact with the enrolled children, inform the child day care agency or registered provider that the individual [poses a threat to children] is ineligible for employment and give the agency or registered provider an opportunity to take immediate corrective action to remove the individual from the agency, and, in conjunction with the department, to develop a corrective action plan, approved by the department, which shall ensure that the individual will not be on the premises of the child day care program and shall have no contact with children enrolled in the child day care program.

\t\t\t(c)  Suspend, deny, or revoke the license or permit, and withhold state funding, if the child day care program refuses to take corrective action as indicated in subparagraph (b), or subsequently fails to comply with the corrective action plan approved by the department.

\t\t\t(d)  Upon a finding of criminal activity as described in this paragraph, withhold state funding to registered child day care providers that are exempt from the licensing requirements of RSA 170-E:4 if the provider refuses to take corrective action as indicated in subparagraph (b), or fails to comply with the corrective action plan approved by the department.

\t158:5  New Paragraphs; Child Day Care Licensing.  Amend RSA 170-E:7 by inserting after paragraph IV the following new paragraphs:

\t\tIV-a.  After the department has made a determination that an individual required to complete a criminal record check under paragraph I does not pose a present threat to the safety of children, the department may issue a child care employment eligibility card, which shall be valid for 5 years provided that no disqualifying convictions are subsequently submitted, and the individual remains eligible as described in subparagraph II-a(b).  The state may require additional background checks to be completed based upon conviction information submitted.

\t\tIV-b.  Child day care providers who are required to be licensed or registered according to the provisions of this chapter shall, for every individual submitted for a check under paragraph I who is not required to complete the criminal background check pursuant to paragraph II-a, have on file a signed statement from the individual stating since the day the individual’s background check was completed, that he or she:

\t\t\t(a)  Has not been convicted of any crimes; and

\t\t\t(b)  Has not had a finding by the department or any administrative agency in this or any other state for abuse, neglect, or exploitation.

\t\tIV-c.  Child care providers, whether registered or licensed, and individuals as described in paragraph I, shall complete the background check process described in this section no later than 5 years from the previous background check submission.

\t\tIV-d.  The fee for a child care employment eligibility card issued under paragraph IV-a shall be $50 and the card shall be valid for 5 years from the date of issuance.  A replacement card may be requested for a $15 fee.

\t158:6  Residential Care and Child-Placing Agency Licensing.  Amend RSA 170-E:29-a to read as follows:

\t\t170-E:29-a  State Registry and Criminal Records Check for Child Care Institutions and Child Care Agencies.

\t\tI.  Child care institutions and child care agencies, with the exception of foster family homes, that are required to be licensed according to the provisions of this chapter shall, prior to making a final offer of employment to a person who will be responsible for the care of, or who will have regular contact with children, and upon adding a new household member, [a current household member who turns 17 years of age,] or other persons who will have regular contact with children, submit to the department, the names, birth names, birth dates, and addresses during the preceding 5 years of such persons and other information required by the department as prescribed by rules adopted by the commissioner under RSA 541-A. [The persons described in this paragraph shall submit directly to the department of safety a notarized criminal history records release form, as provided by the New Hampshire division of state police, which authorizes the release of the person’s criminal records, if any, to the department.  The person shall submit with the release form a complete set of fingerprints taken by a qualified law enforcement agency or an authorized employee of the department of safety.  The department of safety shall complete the criminal history records check and forward such record, if any, to the department.  In the event that the first set of fingerprints is invalid due to insufficient pattern, a second set of fingerprints shall be necessary to complete the criminal history records check.  If, after 2 attempts, a set of fingerprints is invalid due to insufficient pattern, the department may, in lieu of the criminal history records check, accept police clearances from every city, town, or county where the person has lived during the past 5 years.]

\t\tI-a.  The persons described in paragraph I shall submit directly to the department of safety a notarized criminal history record information authorization form, as provided by the New Hampshire division of state police, which authorizes the release of the person’s criminal records, if any, to the department.  The persons shall complete a Federal Bureau of Investigation fingerprint check using the Integrated Automated Fingerprint Identification System through a qualified law enforcement agency or an authorized employee of the department of safety.  The department of safety shall complete the criminal history records check and forward such record, if any, to the department.  In the event that the first set of fingerprints is invalid due to insufficient pattern, a second set of fingerprints shall be necessary to complete the criminal history records check.  If, after 2 attempts, a set of fingerprints is invalid due to insufficient pattern, the department may, in lieu of the criminal history records check, accept police clearances from every city, town, or county where the person has lived during the past 5 years.

\t\tII.(a)  [The department shall,] For every name submitted on an application and for each person for whom information is required to be submitted pursuant to paragraph I, [review the names, birth names, birth dates, and current and previous addresses of] the department shall search for such persons against the [state registry of founded abuse and neglect reports] New Hampshire sex offender and abuse and neglect registries, the sex offender and abuse and neglect registries of each state where the individual resided in the past 5 years, and the National Sex Offender Registry.

\t\t\t(b)  The department of safety shall submit the criminal history records release form to the New Hampshire division of state police, which shall conduct a criminal history records check through its records and through the Federal Bureau of Investigation.  Upon completion of the background investigation, the division of state police shall release copies of the criminal conviction records to the department.  The department shall maintain the confidentiality of all criminal history records information received pursuant to this paragraph.

\t\t\t(c)  The costs of criminal history record checks shall be borne by the licensee; provided, that the licensee may require an applicant to pay the actual costs of the criminal history check of the employee.

\t\tIII.  Notwithstanding paragraph I, a licensee may make a final offer of employment and allow a person to begin working in the program while the results of the state and national criminal background check is pending provided that, prior to beginning employment, the applicant completes a [sworn] statement [signed by a notary public or justice of the peace] stating that he or she:

\t\t\t(a)  Does not have any felony conviction in this or any other state.

\t\t\t(b)  Has not been convicted of a sexual assault, assault including simple assault, any other violent crime, abuse, neglect, or any other crime that shows that they may pose a threat to well-being of children, such as a violent crime or a sexually-related crime against an adult.

\t\t\t(c)  Has not had a finding by the department or any administrative agency in this or any other state for abuse, neglect or exploitation of children.

\t\tIV.  The results of the [federal] criminal background check shall be valid for [3] 5 years.  Prior to the expiration of that [3-year] 5-year period, a person [required to] responsible for the care of, or who has regular contact with children in child care institutions or child care agencies, or household members, or other persons who will have regular contact with children, shall undergo a [criminal] background check pursuant to this section [shall submit a new set of fingerprints and undergo a subsequent federal criminal background check.  If a person who is or has been employed or volunteered at a child care institution or child care agency is offered employment or volunteers at another child care institution or child care agency or a child day care agency, the person shall, before entering employment or volunteering with the new agency, undergo a New Hampshire state criminal records check through the department of safety and shall complete a sworn statement as set forth in paragraph III].

\t\tIV-a.  If a person who is or has been employed or volunteered at a child care institution or child care agency is offered employment or volunteers at another child care institution or child care agency or a child day care agency, the person shall not be required to undergo the criminal records check described in paragraph I-a if the previous criminal records check was completed within the last 5 years and the person was determined by the department to be eligible for employment.  Before entering employment or volunteering with the new agency, the person shall complete a statement as set forth in paragraph III.

\t\tV.  The department shall make a determination regarding the individual’s eligibility for employment no later than 45 days from submission of all required information as described in paragraphs I and I-a.  If any person whose name has been submitted for a check under this section [has been convicted of a violent or sexually-related crime against a child,] is registered or required to be registered on a state sex offender registry or repository, or the National Sex Offender Registry, or has been convicted of a felony consisting of murder, child abuse or neglect, a crime against children including child pornography and trafficking, spousal abuse, a crime involving rape or sexual assault, kidnapping, arson, physical assault or battery, or a drug-related offense committed during the previous 5 years, or any other violent or sexually related misdemeanor or against a child, including child abuse, child endangerment, sexual assault, or a misdemeanor involving child pornography, or of a crime which shows that the person might be reasonably expected to pose a threat to a child, such as a violent crime or a sexually-related crime against an adult, the department shall:

\t\t\t(a)  If the person is the applicant or owner, revoke or deny the license.

\t\t\t(b)  If the person is a board member, household member, or child care institution or child care agency personnel, or any other person having regular contact with the enrolled children[:

\t\t\t\t(1)]  inform the child care institution or child care agency that the person [poses a threat to children] is ineligible for employment and give the program an opportunity to take immediate corrective action to remove the person from the program, and, in conjunction with the department, to develop a corrective action plan, approved by the department, which shall ensure that the person will not be on the premises of the child care institution or child care agency and shall have no contact with children enrolled in the child care institution or child care agency[; and/or].

\t\t\t\t[(2)] (c)  Suspend, deny, or revoke the license or permit if the child care institution or child care agency refuses to take corrective action as indicated in subparagraph (b)[(1)], or subsequently fails to comply with the corrective action plan approved by the department.

\t\tVI.  If any person whose name has been submitted for this check has been convicted of a felony offense or violent crime deemed directly or indirectly harmful to children in child residential care, crimes against minors or adults, except crimes as provided in paragraph V, or is the subject of a founded complaint of child abuse or neglect, the department may deny, revoke, or suspend a license[,] or permit[, or registration] pending the development and implementation of a corrective action plan approved by the department.  The department shall conduct an investigation in accordance with rules adopted under this subdivision to determine whether the person [poses a present threat to the safety of children] is ineligible for employment.  The investigation shall include an opportunity for the person to present evidence on his or her behalf to show that the person does not pose a threat to the safety of children.

\t\t[VII.  At the time the licensee is next due to renew the license, the licensee shall submit a notarized criminal conviction record release authorization form and a set of fingerprints to the department of safety for any existing employee or household member who is 17 years of age or older and who has not undergone a national criminal background check as of the effective date of this section.  Upon receiving the results of the state and national criminal records check, if the licensee learns that a current employee has been convicted of any felony, a sexual assault, any other violent crime, assault including simple assault, abuse, neglect or any other crime that shows that they may pose a threat to well-being of children, such as a violent crime or a sexually-related crime against an adult, or has a founded allegation of abuse, neglect or exploitation against children, the licensee shall either terminate the employee or suspend the employee and promptly request a waiver from the department allowing the employee to resume working in the program.  Upon receiving the results of the state and national criminal records check, if the licensee learns that a current household member has been convicted of any felony, a sexual assault, any other violent crime, assault including simple assault, abuse, neglect or any other crime that shows that the person may pose a threat to well-being of children, such as a violent crime or a sexually-related crime against an adult, or has a founded allegation of abuse, neglect or exploitation against children, the licensee shall take immediate corrective action to remove the person from the child care institution or child care agency, and, in conjunction with the department, develop a corrective action plan, approved by the department, which shall ensure that the person will not be on the premises of the child care institution or child care agency and shall have no contact with children residing in the child care institution or agency.  If the licensee fails to take such corrective action, the department shall suspend the license until such time as the licensee does implement the corrective action, or it shall revoke the license.]  

\t\tVII.(a)  Once the department has made a determination that the individual required to complete a criminal record check under paragraph I-a is eligible for employment, the department shall issue a child care employment eligibility card, which shall be valid for 5 years provided that no disqualifying convictions are subsequently submitted, and the individual remains eligible as described in RSA 170-E:7,  II-a(b).  The state may require additional background checks to be completed based upon conviction information submitted.

\t\t\t(b)  The fee for a child care employment eligibility card shall be $50, and the card shall be valid for 5 years from the date of issuance.  The fee for a replacement card shall be $15.

\t\tVIII.  The commissioner shall adopt rules, pursuant to RSA 541-A, relative to the confidentiality of information collected under this section and to the release, if any, of such information.

\t158:7  Effective Date.  This act shall take effect October 1, 2016.

Approved: May 27, 2016

Effective Date: October 1, 2016