I. Requirements Affecting Massachusetts Public And Private Schools. a. New Fingerprint-Based Criminal Background Checks

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1 New Fingerprint-Based Criminal Background Check Requirements For Independent Schools In Massachusetts By Sara Goldsmith Schwartz 1 President, Schwartz Hannum PC February, 2013 On January 10, 2013, Massachusetts Governor Deval Patrick signed into law a bill that imposes new fingerprint-based criminal background check requirements on public and private schools in Massachusetts, as well as programs licensed, funded or approved by the Massachusetts Department of Early Education and Care ( EEC ). See H.B (Mass. 2013). The new background check requirements go into effect for the school year for new employees. Current school employees must submit fingerprints for federal background checks within the next three years. This article provides an overview of the new criminal background check requirements. Part I describes the fingerprint-based criminal background check requirements applicable to independent schools in Massachusetts. Part II outlines the fingerprint-based criminal background check requirements applicable to programs licensed, funded or approved by EEC. Part III addresses the timeline for compliance, and Part IV details our recommendations to assist independent schools in complying with the new law. Schwartz Hannum PC has been advised by EEC that camps regulated by the Department of Public Health are not subject to the new law. A camp held at a school can be considered a camp (and therefore not subject to the new fingerprinting requirements) only if it is registered as its own corporate entity, has its own staff, and is separately run from the school. On the other hand, summer programs that are not separate corporate entities from the school, that take place at the school and are operated by school staff, will likely be covered by the new law and forthcoming regulations implementing the new fingerprinting requirements. I. Requirements Affecting Massachusetts Public And Private Schools a. New Fingerprint-Based Criminal Background Checks Under the new law, all public and private schools in Massachusetts are required to obtain state and national fingerprint-based criminal background checks for the purpose of determining the suitability of current and prospective employees of the schools who may have direct and unmonitored contact with children. The new law also requires schools to obtain state and 1 Sara Goldsmith Schwartz is the President of Schwartz Hannum PC. Sara represents independent schools, colleges and universities with respect to the myriad issues that arise each day for school administrators, such as: student and employee disciplinary matters, internal grievances and investigations, risk management, regulatory compliance, and governance matters. Sara gratefully acknowledges the assistance of Arabela Thomas and Soyoung Yoon in preparing this article Schwartz Hannum PC. The information provided herein is general in nature and is not offered, and should not be construed, as legal advice with respect to any specific matter. Please consult with legal counsel before implementing policies and procedures.

2 national fingerprint-based criminal background checks for any individual who regularly provides school-related transportation to children, and any subcontractor or laborer commissioned by the schools to perform work on school grounds who may have direct and unmonitored contact with children. 2 M.G.L. c. 71, 38R, as amended by H.B. 4307, 7. As in the past, the new law does not define direct and unmonitored contact with children. In a 2007 advisory memorandum, the Commissioner of the Massachusetts Department of Education encouraged schools to use the following definition: Direct and unmonitored contact with children means contact with a child when no other CORI cleared employee of the school or district is present. A person having only the potential for incidental unsupervised contact with children in commonly used areas of the school grounds, such as hallways, shall not be considered to have the potential for direct and unmonitored contact with children. These excluded areas do not include bathrooms and other isolated areas (not commonly utilized and separated by sight or sound from other staff) that are accessible to students. 3 The memorandum advises schools to consult with legal counsel regarding which positions to check. While the memorandum only addresses CORI checks and not fingerprinting checks, similar reasoning is likely to apply. b. Submission Of Fingerprints And Applicable Fees Under the new law, fingerprints will be submitted to the Massachusetts State Police, State Identification Section ( SIS ) for a state criminal history check and forwarded to the Federal Bureau of Investigation ( FBI ), according to the polices and procedures to be established by SIS and DCJIS. We have been advised by DCJIS that the logistics of how the fingerprinting process will operate (e.g., where applicants will be fingerprinted, how long it will take to obtain the results of the fingerprinting) will likely be addressed in the regulations that have yet to be issued. It is likely that the individuals to be fingerprinted will not be required to go to a police station, but rather, to a location operated by a third-party vendor. We have been advised that the FBI will not send results directly to schools, but rather, to the DCJIS, which will review and translate the results before sending them to schools. M.G.L. c. 71, 38R, as amended by H.B. 4307, 7. Schools that receive the results of national criminal background checks are required to protect such information in accordance with CORI regulations. M.G.L. c. 71, 38R, as amended by H.B. 4307, 7. Under the new law, applicants will be required to pay a fee associated with conducting fingerprint-based criminal background checks. The fee, which is still to be established, 2 Schwartz Hannum PC has been advised by DCJIS that the new fingerprint requirements do not apply to volunteers at independent schools, regardless of whether the volunteers may have direct and unmonitored contact with children. 3 Advisory On CORI Law: Mandatory Criminal Record (CORI) Checks (May 7, 2007) available at 2

3 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. M.G.L. c. 71, 38R, as amended by H.B. 4307, 7. The new law is silent with respect to whether schools are permitted to reimburse applicants regardless of financial hardship. c. Criminal Offender Record Information Checks Schools are required to continue to obtain all available CORI from DCJIS periodically, but not less than every three (3) years, for any current or prospective employee or volunteer who may have direct and unmonitored contact with children. 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 three (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 schoolrelated transportation to children. M.G.L. c. 71, 38R, as amended by H.B. 4307, 7. II. Requirements Affecting Programs Licensed, Funded Or Approved By EEC a. New Fingerprint-Based Criminal Background Checks In addition to the requirements discussed above, the new law requires EEC to conduct fingerprint-based checks of the state and national criminal history databases 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. Fingerprint-based criminal background checks must be conducted for all household members or persons regularly on premises, age 15 or older, of applicants for family child care licensure. Fingerprint-based background checks are also required for in-home non-relative EEC funded caregivers, and for individuals applying to be adoptive and foster parents. M.G.L. c. 15D, 7(a), as amended by H.B. 4307, 1. The new law requires fingerprint-based checks for applicants for employment who have the potential for unsupervised contact with children, in any EEC licensed, approved or funded program. M.G.L. c. 15D, 7(a), as amended by H.B. 4307, 1; M.G.L. c. 15D, 7(b), as amended by H.B. 4307, 2. The current EEC regulations on background record checks define potential for unsupervised contact with children as [a] reasonable likelihood of contact with children in an EEC licensed and/or funded program when no other CORI/DSS Background Record Check cleared employee is present. 606 C.M.R The current EEC regulations further provide that [a] person having only the potential for incidental unsupervised contact with children in commonly used areas such as elevators, hallways and waiting rooms shall not be considered to have the potential for unsupervised contact for purposes of [EEC regulations]. These commonly used areas do not include bathrooms and other isolated areas (not commonly utilized or separated by sight and sound from other staff) that are accessible to children. 606 C.M.R

4 As in the past, each individual providing child care or support services, with the potential for unsupervised contact with children, in any program or facility licensed or funded by EEC, as well as any household members or persons regularly on the premises of family child care and large family child care homes, will be subject to a CORI check. M.G.L. c. 15D, 8(d), as amended by H.B. 4307, 4. b. Submission Of Fingerprints And Applicable Fees Under the new law, fingerprints will be submitted to SIS for a state criminal history check and forwarded to the FBI, according to the polices and procedures established by SIS and DCJIS. 4 Fingerprint submissions and national criminal history checks may be retained by DCJIS for the purpose of ensuring the continued suitability for licensure, certification, approval or employment of those individuals, provided that DCJIS is authorized to disseminate the results of a national criminal history check to EEC for the purpose of determining the suitability of current and prospective employees in any EEC licensed or funded program and for household members or persons regularly on the premises, age 15 or older, of applicants for family child care licensure, in-home non-relative EEC funded caregivers, and for applicants to be adoptive or foster parents. M.G.L. c. 15D, 8, as amended by H.B. 4307, 5. Under the new law, individuals required to submit to fingerprint-based criminal background checks due to the new EEC requirements will be required to pay a fee, which is still to be established, but statutorily cannot exceed $35 unless the cost of FBI fingerprint checks increases. EEC programs may reimburse applicants for employment for the fee on grounds of financial hardship. M.G.L. c. 15D, 8, as amended by H.B. 4307, 5. The new law is silent with respect to whether such programs are permitted to reimburse applicants regardless of any financial hardship. III. Timeline For Compliance The new law takes effect for the school year for new employees. Current employees are required to submit fingerprints for federal background checks within 3 years. H.B. 4307, 9. We have been advised to expect that implementing regulations will be issued prior to the school year. The new law delegates responsibility for amending or promulgating regulations to the Board of Elementary and Secondary Education ( ESE ) and EEC. See H.B. 4307, 5, 7. While a number of significant new regulatory requirements are expected to be proposed, ESE and EEC have not yet made any public announcements regarding proposed regulations. 5 4 With respect to the logistics of fingerprints (e.g., where applicants get fingerprinted, how long it takes for the school to get the results), DCJIS has advised that EEC will be promulgating regulations that may address these questions. 5 If you would like to receive our e-alert when the proposed regulations are issued by ESE or EEC, please Sara Goldsmith Schwartz at schwartz@shpclaw.com. 4

5 IV. Recommendations For Independent Schools In Massachusetts In light of the new background check requirements, we recommend that independent schools in Massachusetts take the following steps. First: assess, with the assistance of legal counsel, all of the background check requirements to which the school may be subject, and update the school s background check policy and compliance package to incorporate these new requirements. Second: assess application and new hire documentation (such as employment applications, offer letters and employment agreements), and update these documents to reflect that both initial and continued employment are contingent upon successful completion of all legally required and School-required background checks, including review of CORI, SORI and fingerprint-based criminal background checks. Third: assess which employees, subcontractors and laborers will be subject to the new background check requirements. If it is unclear as to whether an employee, subcontractor or laborer may have direct and unmonitored contact with children, we recommend consulting with counsel to assess the potential applicability of the law with respect to such individuals. Fourth: as required, conduct fingerprint-based checks on individuals who regularly provide school-related transportation to children. Finally, we recommend that employment, volunteer and contractor decisions based on fingerprint-based criminal background checks be made in a consistent, non-discriminatory manner. In this regard, we recommend that, in consultation with counsel, schools create a formal policy for assessing information obtained through fingerprint-based background checks, CORI, SORI and other sources. Such a policy should, among other topics, outline the list of crimes with respect to which a conviction will result in mandatory disqualification, presumptive disqualification, and discretionary disqualification from a position at the school. The school s written policy for assessing information obtained through fingerprint-based background checks, CORI, SORI and other sources should be consistent with the guidance recently issued by the Equal Employment Opportunity Commission. 6 * * * * * For an assessment of criminal background check requirements applicable to your school, please Sara Goldsmith Schwartz at schwartz@shpclaw.com. 6 EEOC Enforcement Guidance, Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964 (April 25, 2012) available at: 5