Bill Text: MO HB2437 | 2010 | Regular Session | Introduced
Bill Title: Changes the laws regarding criminal background checks conducted under the Family Care Safety Registry
Spectrum: Partisan Bill (Republican 1-0)
Status: (Introduced - Dead) 2010-05-14 - Referred: Public Safety (H) [HB2437 Detail]
Download: Missouri-2010-HB2437-Introduced.html
SECOND REGULAR SESSION
95TH GENERAL ASSEMBLY
INTRODUCED BY REPRESENTATIVE GRISAMORE.
4698L.01I D. ADAM CRUMBLISS, Chief Clerk
AN ACT
To repeal sections 168.133, 210.025, 210.221, 210.900, 210.903, 210.906, and 210.921, RSMo, and to enact in lieu thereof seven new sections relating to the family care safety registry, with penalty provisions.
Be it enacted by the General Assembly of the state of Missouri, as follows:
Section A. Sections 168.133, 210.025, 210.221, 210.900, 210.903, 210.906, and 210.921, RSMo, are repealed and seven new sections enacted in lieu thereof, to be known as sections 168.133, 210.025, 210.221, 210.900, 210.903, 210.906, and 210.921, to read as follows:
168.133. 1. The school district shall ensure that a criminal background check is conducted on any person employed after January 1, 2005, authorized to have contact with pupils and prior to the individual having contact with any pupil and that all such employees register with the family care safety registry under sections 210.900 to 210.936. Such persons include, but are not limited to, administrators, teachers, aides, paraprofessionals, assistants, secretaries, custodians, cooks, and nurses. The school district shall also ensure that a criminal background check is conducted for school bus drivers. The district may allow such drivers to operate buses pending the result of the criminal background check. For bus drivers, the background check shall be conducted on drivers employed by the school district or employed by a pupil transportation company under contract with the school district.
2. In order to facilitate the criminal history background check on any person employed after January 1, 2005, the applicant shall submit two sets of fingerprints collected pursuant to standards determined by the Missouri highway patrol. One set of fingerprints shall be used by the highway patrol to search the criminal history repository and the family care safety registry pursuant to sections 210.900 to 210.936, RSMo, and the second set shall be forwarded to the Federal Bureau of Investigation for searching the federal criminal history files.
3. The applicant shall pay the fee for the state criminal history record information pursuant to section 43.530, RSMo, and sections 210.900 to 210.936, RSMo, and pay the appropriate fee determined by the Federal Bureau of Investigation for the federal criminal history record when he or she applies for a position authorized to have contact with pupils pursuant to this section. The department shall distribute the fees collected for the state and federal criminal histories to the Missouri highway patrol.
4. The school district may adopt a policy to provide for reimbursement of expenses incurred by an employee for state and federal criminal history information pursuant to section 43.530, RSMo.
5. If, as a result of the criminal history background check mandated by this section, it is determined that the holder of a certificate issued pursuant to section 168.021 has pled guilty or nolo contendere to, or been found guilty of a crime or offense listed in section 168.071, or a similar crime or offense committed in another state, the United States, or any other country, regardless of imposition of sentence, such information shall be reported to the department of elementary and secondary education.
6. Any school official making a report to the department of elementary and secondary education in conformity with this section shall not be subject to civil liability for such action.
7. For any teacher who is employed by a school district on a substitute or part-time basis within one year of such teacher's retirement from a Missouri school, the state of Missouri shall not require such teacher to be subject to any additional background checks prior to having contact with pupils. Nothing in this subsection shall be construed as prohibiting or otherwise restricting a school district from requiring additional background checks for such teachers employed by the school district.
8. A criminal background check and fingerprint collection conducted under subsections 1 and 2 of this section shall be valid for at least a period of one year and transferrable from one school district to another district. A teacher's change in type of certification shall have no effect on the transferability or validity of such records.
9. Nothing in this section shall be construed to alter the standards for suspension, denial, or revocation of a certificate issued pursuant to this chapter.
10. The state board of education may promulgate rules for criminal history background checks made pursuant to this section. Any rule or portion of a rule, as that term is defined in section 536.010, RSMo, that is created under the authority delegated in this section shall become effective only if it complies with and is subject to all of the provisions of chapter 536, RSMo, and, if applicable, section 536.028, RSMo. This section and chapter 536, RSMo, are nonseverable and if any of the powers vested with the general assembly pursuant to chapter 536, RSMo, to review, to delay the effective date, or to disapprove and annul a rule are subsequently held unconstitutional, then the grant of rulemaking authority and any rule proposed or adopted after January 1, 2005, shall be invalid and void.
210.025. 1. To qualify for receipt of state or federal funds for providing child-care services in the home either by direct payment or through reimbursement to a child-care beneficiary, an applicant and any person over the age of seventeen who is living in the applicant's home shall be required to register with the family care safety registry under sections 210.900 to 210.936, submit to a state and national fingerprint criminal background check pursuant to section 43.540, RSMo, and a check of the central registry for child abuse established in section 210.145. [Effective January 1, 2001, the requirements of this subsection or subsection 2 of this section shall be satisfied through registration with the family care safety registry established in sections 210.900 to 210.936.] Any costs associated with such checks shall be paid by the applicant.
2. Upon receipt of an application for state or federal funds for providing child-care services in the home, the family support division shall:
(1) Determine if a finding of child abuse or neglect by probable cause prior to August 28, 2004, or by a preponderance of the evidence after August 28, 2004, involving the applicant or any person over the age of seventeen who is living in the applicant's home has been recorded pursuant to section 210.145 or 210.221;
(2) Determine if the applicant or any person over the age of seventeen who is living in the applicant's home has been refused licensure or has experienced licensure suspension or revocation pursuant to section 210.221 or 210.496; and
(3) Upon initial application, require the applicant to submit to fingerprinting and request a criminal background check of the applicant and any person over the age of seventeen who is living in the applicant's home pursuant to section 43.540, RSMo, and section 210.487, and inquire of the applicant whether any children less than seventeen years of age residing in the applicant's home have ever been certified as an adult and convicted of, or pled guilty or nolo contendere to any crime.
3. Except as otherwise provided in subsection 4 of this section, upon completion of the background checks in subsection 2 of this section, an applicant shall be denied state or federal funds for providing child care if such applicant, any person over the age of seventeen who is living in the applicant's home, and any child less than seventeen years of age who is living in the applicant's home and who the division has determined has been certified as an adult for the commission of a crime:
(1) Has had a finding of child abuse or neglect by probable cause prior to August 28, 2004, or by a preponderance of the evidence after August 28, 2004, pursuant to section 210.145 or section 210.152;
(2) Has been refused licensure or has experienced licensure suspension or revocation pursuant to section 210.496;
(3) Has pled guilty or nolo contendere to or been found guilty of any felony for an offense against the person as defined by chapter 565, RSMo, or any other offense against the person involving the endangerment of a child as prescribed by law; of any misdemeanor or felony for a sexual offense as defined by chapter 566, RSMo; of any misdemeanor or felony for an offense against the family as defined in chapter 568, RSMo, with the exception of the sale of fireworks, as defined in section 320.110, RSMo, to a child under the age of eighteen; of any misdemeanor or felony for pornography or related offense as defined by chapter 573, RSMo; or of any similar crime in any federal, state, municipal or other court of similar jurisdiction of which the director has knowledge or any offenses or reports which will disqualify an applicant from receiving state or federal funds.
4. An applicant shall be given an opportunity by the division to offer any extenuating or mitigating circumstances regarding the findings, refusals or violations against such applicant or any person over the age of seventeen or less than seventeen who is living in the applicant's home listed in subsection 2 of this section. Such extenuating and mitigating circumstances may be considered by the division in its determination of whether to permit such applicant to receive state or federal funds for providing child care in the home.
5. An applicant who has been denied state or federal funds for providing child care in the home may appeal such denial decision in accordance with the provisions of section 208.080, RSMo.
6. If an applicant is denied state or federal funds for providing child care in the home based on the background check results for any person over the age of seventeen who is living in the applicant's home, the applicant shall not apply for such funds until such person is no longer living in the applicant's home.
7. Any rule or portion of a rule, as that term is defined in section 536.010, RSMo, that is created under the authority delegated in this section shall become effective only if it complies with and is subject to all of the provisions of chapter 536, RSMo, and, if applicable, section 536.028, RSMo. All rulemaking authority delegated prior to August 28, 1999, is of no force and effect and repealed. Nothing in this section shall be interpreted to repeal or affect the validity of any rule filed or adopted prior to August 28, 1999, if it fully complied with all applicable provisions of law. This section and chapter 536, RSMo, are nonseverable and if any of the powers vested with the general assembly pursuant to chapter 536, RSMo, to review, to delay the effective date or to disapprove and annul a rule are subsequently held unconstitutional, then the grant of rulemaking authority and any rule proposed or adopted after August 28, 1999, shall be invalid and void.
210.221. 1. The department of health and senior services shall have the following powers and duties:
(1) After inspection, to grant licenses to persons to operate child-care facilities if satisfied as to the good character and intent of the applicant and that such applicant is qualified and equipped to render care or service conducive to the welfare of children, and to renew the same when expired. No license shall be granted for a term exceeding two years. Each license shall specify the kind of child-care services the licensee is authorized to perform, the number of children that can be received or maintained, and their ages and sex;
(2) To inspect the conditions of the homes and other places in which the applicant operates a child-care facility, inspect their books and records, premises and children being served, examine their officers and agents, deny, suspend, place on probation or revoke the license of such persons as fail to obey the provisions of sections 210.201 to 210.245 or the rules and regulations made by the department of health and senior services. The director also may revoke or suspend a license when the licensee fails to renew or surrenders the license;
(3) To promulgate and issue rules and regulations the department deems necessary or proper in order to establish standards of service and care to be rendered by such licensees to children. No rule or regulation promulgated by the division shall in any manner restrict or interfere with any religious instruction, philosophies or ministries provided by the facility and shall not apply to facilities operated by religious organizations which are not required to be licensed; [and]
(4) To determine what records shall be kept by such persons and the form thereof, and the methods to be used in keeping such records, and to require reports to be made to the department at regular intervals; and
(5) To require all licensed and license-exempt providers, applicants for licensure, and every employee and volunteer of licensed and license-exempt providers to register with the family care safety registry under sections 210.900 to 210.936, submit to a state and national fingerprint criminal background check under section 43.540, and submit to a check of the central registry for child abuse under section 210.145.
2. Any child-care facility may request a variance from a rule or regulation promulgated pursuant to this section. The request for a variance shall be made in writing to the department of health and senior services and shall include the reasons the facility is requesting the variance. The department shall approve any variance request that does not endanger the health or safety of the children served by the facility. The burden of proof at any appeal of a disapproval of a variance application shall be with the department of health and senior services. Local inspectors may grant a variance, subject to approval by the department of health and senior services.
3. The department shall deny, suspend, place on probation or revoke a license if it receives official written notice that the local governing body has found that license is prohibited by any local law related to the health and safety of children. The department may, after inspection, find the licensure, denial of licensure, suspension or revocation to be in the best interest of the state.
4. Any rule or portion of a rule, as that term is defined in section 536.010, RSMo, that is created under the authority delegated in sections 210.201 to 210.245 shall become effective only if it complies with and is subject to all of the provisions of chapter 536, RSMo, and, if applicable, section 536.028, RSMo. All rulemaking authority delegated prior to August 28, 1999, is of no force and effect and repealed. Nothing in this section shall be interpreted to repeal or affect the validity of any rule filed or adopted prior to August 28, 1999, if it fully complied with all applicable provisions of law. This section and chapter 536, RSMo, are nonseverable and if any of the powers vested with the general assembly pursuant to chapter 536, RSMo, to review, to delay the effective date or to disapprove and annul a rule are subsequently held unconstitutional, then the grant of rulemaking authority and any rule proposed or adopted after August 28, 1999, shall be invalid and void.
210.900. 1. Sections 210.900 to 210.936 shall be known and may be cited as the "Family Care Safety Act".
2. As used in sections 210.900 to 210.936, the following terms shall mean:
(1) "Child-care provider", any licensed or license-exempt child-care home, any licensed or license-exempt child-care center, child-placing agency, residential care facility for children, group home, foster family group home, foster family home, employment agency that refers a child-care worker to parents or guardians as defined in section 289.005, RSMo, or any facility or provider regulated by the departments of health and senior services, elementary and secondary education, and social services. The term "child-care provider" does not include summer camps or voluntary associations designed primarily for recreational or educational purposes;
(2) "Child-care worker", any person who is employed by or volunteers for a child-care provider, or receives state or federal funds, either by direct payment, reimbursement or voucher payment, as remuneration for child-care services;
(3) "Department", the department of health and senior services;
(4) "Elder-care provider", any operator licensed pursuant to chapter 198, RSMo, or any person, corporation, or association who provides in-home services under contract with the division of aging, or any employer of nurses or nursing assistants of home health agencies licensed pursuant to sections 197.400 to 197.477, RSMo, or any nursing assistants employed by a hospice pursuant to sections 197.250 to 197.280, RSMo, or that portion of a hospital for which subdivision (3) of subsection 1 of section 198.012, RSMo, applies;
(5) "Elder-care worker", any person who is employed by an elder-care provider, or who receives state or federal funds, either by direct payment, reimbursement or voucher payment, as remuneration for elder-care services;
(6) "Employer", any child-care provider, elder-care provider, [or] personal-care provider, mental health provider, or school district staff as defined in this section;
(7) "Mental health provider", any mental retardation facility or group home as defined in section 633.005, RSMo;
(8) "Mental health worker", any person employed by a mental health provider to provide personal care services and supports;
(9) "Patrol", the Missouri state highway patrol;
(10) "Personal-care attendant" or "personal-care worker", a person who performs routine services or supports necessary for a person with a physical or mental disability to enter and maintain employment or to live independently;
(11) "Personal-care provider", any person, corporation, or association who provides personal-care services or supports under contract with the department of mental health, the division of aging, the department of health and senior services or the department of elementary and secondary education;
(12) "Related child care", child care provided only to a child or children by such child's or children's grandparents, great-grandparents, aunts or uncles, or siblings living in a residence separate from the child or children;
(13) "Related elder care", care provided only to an elder by an adult child, a spouse, a grandchild, a great-grandchild or a sibling of such elder;
(14) "School district staff", persons authorized to have contact with public school pupils, including but not limited to administrators, teachers, aides, paraprofessionals, assistants, secretaries, custodians, cooks, and nurses.
210.903. 1. To protect children, the elderly, the disabled, including the developmentally, physically, and cognitively disabled individuals in this state, and to promote family and community safety by providing information concerning family caregivers, and for the purpose of ensuring the comprehensive screenings of persons providing services to the state's most vulnerable citizens, there is hereby established within the department of health and senior services a "Family Care Safety Registry and Access Line" which shall be available by January 1, 2001.
2. The family care safety registry shall be the sole background check repository for the state of Missouri. The Missouri state highway patrol shall collect fingerprints and conduct state and national criminal background checks, with the resulting background information to be retained in and reported out by the family care safety registry. All state departments and agencies shall utilize the family care safety registry for background screening results. The state of Missouri shall utilize a portion of the moneys made available to the state through the federal American Recovery and Reinvestment Act of 2009, as enacted by the 111th United States Congress, or subject to appropriations, to provide the department of health and senior services with adequate funding to update and enhance the technological capabilities of the family care safety registry and implement an interdepartmental uniform infrastructure and procedure for the departments of public safety, social services, mental health, and elementary and secondary education to use for background screening results and to fund the processing of such results for employed individuals not currently registered with the family care safety registry. The department of health and senior services shall disburse moneys received to the departments of public safety, social services, mental health, and elementary and secondary education to allow appropriate interagency operability of systems in order to make the technological, administrative, and procedural adjustments needed for implementation.
3. (1) The family care safety registry shall contain information on teachers, school employees with child contact, child-care workers', elder-care workers', mental health workers', and personal-care workers' background and on child-care, elder-care, mental health, [and] personal-care providers, and school district staff through:
[(1)] (a) The patrol's criminal record check system pursuant to section 43.540, RSMo, including state and national information, to the extent possible;
[(2)] (b) Probable cause findings of abuse and neglect prior to August 28, 2004, or findings of abuse and neglect by a preponderance of the evidence after August 28, 2004, pursuant to sections 210.109 to 210.183 and, as of January 1, 2003, financial exploitation of the elderly or disabled, pursuant to section 570.145, RSMo;
[(3)] (c) The [division of aging's] department of health and senior services employee disqualification list pursuant to section 660.315, RSMo;
[(4)] (d) As of January 1, 2003, the department of mental health's employee disqualification registry;
[(5)] (e) Foster parent licensure denials, revocations and involuntary suspensions pursuant to section 210.496;
[(6)] (f) Child-care facility license denials, revocations and suspensions pursuant to sections 210.201 to 210.259;
[(7)] (g) Residential living facility and nursing home license denials, revocations, suspensions and probationary status pursuant to chapter 198, RSMo; [and]
[(8)] (h) As of January 1, 2004, a check of the patrol's Missouri uniform law enforcement system (MULES) for sexual offender registrations pursuant to section 589.400, RSMo;
(i) The department of elementary and secondary education's employee disqualification registry, and the department's teacher certifications and revocations list; and
(j) School district staff disqualifications or denials issued by a school district as a result of information results obtained by a background check;
(k) As of January 1, 2011, department of revenue records for suspended and revoked driver's licenses.
(2) If employed on or after January 1, 2011, individuals identified in this subsection and who undergo a criminal background check shall be required to register with the family care safety registry under sections 210.900 to 210.936 and be cleared through the registry database.
4. The contents of the family care safety registry shall be accessible to the departments and contracted agencies of public safety, social services, mental health, and elementary and secondary education, and school districts; except that, information in the registry which would constitute a violation of the federal Health Insurance Portability and Accountability Act of 1996, as amended, or the federal Family Educational Rights and Privacy Act, as amended, shall not be shared between departments.
5. The family care safety registry shall contain open and closed records available of persons maintained in the registry.
6. If an individual is denied employment based on results of a background screening reported by the family care safety registry, such individual may seek an appeal, if applicable, directly from the department that disqualified the individual's employment.
210.906. 1. Every child-care worker or elder-care worker hired on or after January 1, 2001, or personal-care worker hired on or after January 1, 2002, or mental health worker hired on or after January 1, 2009, or all current school district staff by January 1, 2011, and all school district staff hired on or after January 1, 2011, shall complete a registration form provided by the department. The department shall make such forms available no later than January 1, 2001, and may, by rule, determine the specific content of such form, but every form shall:
(1) Request the valid Social Security number of the applicant;
(2) Include information on the person's right to appeal the information contained in the registry pursuant to section 210.912;
(3) Contain the signed consent of the applicant for the background checks required pursuant to this section; and
(4) Contain the signed consent for the release of information contained in the background check for employment purposes only.
2. Every child-care worker or elder-care worker hired on or after January 1, 2001, and every personal-care worker hired on or after January 1, 2002, and every mental health worker hired on or after January 1, 2009, and all current school district staff by January 1, 2011, and all school district staff hired on or after January 1, 2011, shall complete a registration form within fifteen days of the beginning of such person's employment. Any person employed as a child-care, elder-care, mental health, [or] personal-care worker, or school district staff who fails to submit a completed registration form to the department of health and senior services as required by sections 210.900 to 210.936 without good cause, as determined by the department, is guilty of a class B misdemeanor.
3. Subject to appropriations, the cost of the criminal background check shall be paid by the state of Missouri. The costs of the criminal background check not covered by the state of Missouri may be paid by the individual applicant, or by the provider if the applicant is so employed[, or] . If no state appropriation is made and the applicant is employed and the cost of the background check when subtracted from the applicant's annual salary or wages results in the annualized salary or wages of the applicant below the annualized full-time salary or wages for a minimum wage employee, the cost of the background check shall be paid by the employer. For those applicants receiving public assistance, the cost may be paid by the state through the terms of the self-sufficiency pact pursuant to section 208.325, RSMo. Any moneys remitted to the patrol for the costs of the criminal background check shall be deposited to the credit of the criminal record system fund as required by section 43.530, RSMo.
4. Any person licensed pursuant to sections 210.481 to 210.565 shall be automatically registered in the family care safety registry at no additional cost other than the costs required pursuant to sections 210.481 to 210.565.
5. Any person not required to register pursuant to the provisions of sections 210.900 to 210.936 may also be included in the registry if such person voluntarily applies to the department for registration and meets the requirements of this section and section 210.909, including submitting to the background checks in subsection 1 of section 210.909.
6. Except for individuals receiving state or federal funds for their services, the provisions of sections 210.900 to 210.936 shall not extend to related child care, related elder care or related personal care.
210.921. 1. The department shall not provide any registry information pursuant to this section unless the department obtains the name and address of the person calling, and determines that the inquiry is for employment or regulatory purposes [only]. For purposes of sections 210.900 to 210.936, "employment purposes" includes direct employer-employee relationships, prospective employer-employee relationships, direct employer-volunteer relationships, prospective employer-volunteer relationships and screening and interviewing of persons or facilities by those persons contemplating the placement of an individual in a child-care, elder-care, mental health, [or] personal-care, or school district setting. Disclosure of background information concerning a given applicant recorded by the department in the registry shall be limited to:
(1) Confirming whether the individual is listed in the registry; and
(2) Indicating whether the individual has been listed or named in any of the background checks listed in subsection 2 of section 210.903. If such individual has been so listed, the department of health and senior services shall only disclose the name of the background check in which the individual has been identified. With the exception of any agency licensed or contracted by the state to provide child care, elder care, mental health services, or personal care which shall receive specific information immediately if requested, any specific information related to such background check shall only be disclosed after the department has received a signed request from the person calling, with the person's name, address and reason for requesting the information.
2. Any person requesting registry information shall be informed that the registry information provided pursuant to this section consists only of information relative to the state of Missouri and does not include information from other states or information that may be available from other states.
3. Any person who uses the information obtained from the registry for any purpose other than that specifically provided for in sections 210.900 to 210.936 is guilty of a class B misdemeanor.
4. When any registry information is disclosed pursuant to subdivision (2) of subsection 1 of this section, the department shall notify the registrant of the name and address of the person making the inquiry.
5. The department of health and senior services staff providing information pursuant to sections 210.900 to 210.936 shall have immunity from any liability, civil or criminal, that otherwise might result by reason of such actions; provided, however, any department of health and senior services staff person who releases registry information in bad faith or with ill intent shall not have immunity from any liability, civil or criminal. Any such person shall have the same immunity with respect to participation in any judicial proceeding resulting from the release of registry information. The department is prohibited from selling the registry or any portion of the registry for any purpose including employment purposes as defined in subsection 1 of this section.
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