Effective - 28 Aug 2020, 3 histories
210.1080. Background checks required — definitions — procedure — ineligible for employment, when — exemption, when — emergency rules — inapplicability, when. — 1. As used in this section, the following terms mean:
(1) "Child care provider", a person licensed, regulated, or registered to provide child care within the state of Missouri, including the member or members, manager or managers, shareholder or shareholders, director or directors, and officer or officers of any entity licensed, regulated, or registered to provide child care within the state of Missouri;
(2) "Child care staff member", a child care provider; persons employed by the child care provider for compensation, including contract employees or self-employed individuals; individuals or volunteers whose activities involve the care or supervision of children for a child care provider or unsupervised access to children who are cared for or supervised by a child care provider; individuals residing in a family child care home who are seventeen years of age or older before January 1, 2021, or eighteen years of age or older on or after January 1, 2021; or individuals residing in a family child care home who are under seventeen years of age before January 1, 2021, or under eighteen years of age on or after January 1, 2021, and have been certified as an adult for the commission of an offense;
(3) "Criminal background check":
(a) A Federal Bureau of Investigation fingerprint check;
(b) A search of the National Crime Information Center's National Sex Offender Registry; and
(c) A search of the following registries, repositories, or databases in Missouri, the state where the child care staff member resides, and each state where such staff member resided during the preceding five years:
a. The state criminal registry or repository, with the use of fingerprints being required in the state where the staff member resides and optional in other states;
b. The state sex offender registry or repository; and
c. The state-based child abuse and neglect registry and database;
(4) "Designated department", the department to which criminal background check results are sent; the department of health and senior services for child care staff members or prospective child care staff members of licensed child care facilities; and the department of social services for child care staff members or prospective child care staff members of a license-exempt child care facility or an unlicensed child care facility registered with the department of social services under section 210.027;
(5) "Qualifying result" or "qualifying criminal background check", a finding that a child care staff member or prospective child care staff member is eligible for employment or presence in a child care setting described under this section.
2. (1) Prior to the employment or presence of a child care staff member in a licensed child care facility, the child care provider shall request the results of a criminal background check for such child care staff member from the department of health and senior services.
(2) Prior to the employment or presence of a child care staff member in a license-exempt child care facility or an unlicensed child care facility registered with the department of social services, the child care provider shall request the results of a criminal background check for such child care staff member from the department of social services.
(3) A prospective child care staff member may begin work for a child care provider after the qualifying result of either a Federal Bureau of Investigation fingerprint check or a search of the Missouri criminal registry or repository with the use of fingerprints has been received from the designated department; however, pending completion of the criminal background check, the prospective child care staff member shall be supervised at all times by another child care staff member who received a qualifying result on the criminal background check within the past five years.
(4) Any individual who meets the definition of child care provider but is not responsible for the oversight or direction of the child care facility and does not have independent access to the child care facility is not required to request the results of a criminal background check under this section; however, such individual shall be accompanied by an individual with a qualifying criminal background check in order to be present at the child care facility during child care hours.
3. The costs of the criminal background check shall be the responsibility of the child care staff member but may be paid or reimbursed by the child care provider at the provider's discretion. The fees charged for the criminal background check shall not exceed the actual cost of processing and administration.
4. Upon completion of the criminal background check, any child care staff member or prospective child care staff member shall be ineligible for employment or presence at a licensed or license-exempt child care facility or an unlicensed child care facility registered with the department of social services and shall be disqualified from receipt of state or federal funds for providing child care services either by direct payment or through reimbursement to an individual who receives child care benefits if such person:
(1) Refuses to consent to the criminal background check as required by this section;
(2) Knowingly makes a materially false statement in connection with the criminal background check as required by this section;
(3) Is registered, or is required to be registered, on a state sex offender registry or repository or the National Sex Offender Registry;
(4) Is listed as a perpetrator of child abuse or neglect under sections 210.109 to 210.183 or any other finding of child abuse or neglect based on any other state's registry or database; or
(5) Has pled guilty or nolo contendere to or been found guilty of:
(a) Any felony for an offense against the person as defined in chapter 565;
(b) Any other offense against the person involving the endangerment of a child as prescribed by law;
(c) Any misdemeanor or felony for a sexual offense as defined in chapter 566;
(d) Any misdemeanor or felony for an offense against the family as defined in chapter 568;
(e) Burglary in the first degree as defined in 569.160;
(f) Any misdemeanor or felony for robbery as defined in chapter 570;
(g) Any misdemeanor or felony for pornography or related offense as defined in chapter 573;
(h) Any felony for arson as defined in chapter 569;
(i) Any felony for armed criminal action as defined in section 571.015, unlawful use of a weapon as defined in section 571.030, unlawful possession of a firearm as defined in section 571.070, or the unlawful possession of an explosive as defined in section 571.072;
(j) Any felony for making a terrorist threat as defined in section 574.115, 574.120, or 574.125;
(k) A felony drug-related offense committed during the preceding five years; or
(l) Any similar offense in any federal, state, municipal, or other court of similar jurisdiction of which the director of the designated department has knowledge.
5. Household members seventeen years of age or older before January 1, 2021, or eighteen years of age or older on or after January 1, 2021, or household members under seventeen years of age before January 1, 2021, or under eighteen years of age on or after January 1, 2021, who have been certified as an adult for the commission of an offense shall be ineligible to maintain a presence at a facility licensed as a family child care home during child care hours if any one or more of the provisions of subsection 4 of this section apply to such members.
6. A child care provider may also be disqualified from receipt of state or federal funds for providing child care services either by direct payment or through reimbursement to an individual who receives child care benefits if such person, or any person seventeen years of age or older before January 1, 2021, or eighteen years of age or older on or after January 1, 2021, residing in the household in which child care is being provided, excluding child care provided in the child's home, has been refused licensure or has experienced licensure suspension or revocation under section 210.221 or 210.496.
7. A child care provider shall not be required to submit a request for a criminal background check under this section for a child care staff member if:
(1) The staff member received a qualifying criminal background check within five years before the latest date on which such a submission may be made and while employed by or seeking employment by another child care provider within Missouri;
(2) The department of health and senior services or the department of social services provided to the first provider a qualifying criminal background check result, consistent with this section, for the staff member; and
(3) The staff member is employed by a child care provider within Missouri or has been separated from employment from a child care provider within Missouri for a period of not more than one hundred eighty consecutive days.
8. (1) The department processing the request for a criminal background check for any prospective child care staff member or child care staff member shall do so as expeditiously as possible, but not to exceed forty-five days after the date on which the provider submitted the request.
(2) The department shall provide the results of the criminal background check to the child care provider in a statement that indicates whether the prospective child care staff member or child care staff member is eligible or ineligible for employment or presence at the child care facility or receipt of state or federal funds for providing child care services either by direct payment or through reimbursement to an individual who receives child care benefits. The department shall not reveal to the child care provider any disqualifying crime or other related information regarding the prospective child care staff member or child care staff member.
(3) If such prospective child care staff member or child care staff member is ineligible for employment or presence at the child care facility, the department shall, when providing the results of criminal background check, include information related to each disqualifying crime or other related information, in a report to such prospective child care staff member or child care staff member, along with information regarding the opportunity to appeal under subsection 9 of this section.
(4) If a prospective child care provider or child care provider has been denied state or federal funds by the department of social services for providing child care, he or she may appeal such denial to the department of social services.
9. (1) The prospective child care staff member or child care staff member may appeal a finding of ineligibility for employment or presence at a child care facility in writing to the department that made the determination of ineligibility to challenge the accuracy or completeness of the information contained in his or her criminal background check if his or her finding of ineligibility is based on one or more of the following offenses:
(a) Murder, as described in 18 U.S.C. Section 1111;
(b) Felony child abuse or neglect;
(c) A felony crime against children, including child pornography;
(d) Felony spousal abuse;
(e) A felony crime involving rape or sexual assault;
(f) Felony kidnapping;
(g) Felony arson;
(h) Felony physical assault or battery;
(i) A violent misdemeanor offense committed as an adult against a child, including the offense of child abuse, child endangerment, or sexual assault, or a misdemeanor offense involving child pornography; or
(j) Any similar offense in any federal, state, municipal, or other court.
(2) If a finding of ineligibility is based on an offense not provided for in subdivision (1) of this subsection, the prospective child care staff member or child care staff member may appeal to challenge the accuracy or completeness of the information contained in his or her criminal background check or to offer information mitigating the results and explaining why an eligibility exception should be granted.
(3) The appeal shall be filed with the department that made the determination within ten days from the mailing of the notice of ineligibility. Such department shall attempt to verify the accuracy of the information challenged by the individual, including making an effort to locate any missing disposition information related to the disqualifying offense. After the department verifies the accuracy of the information challenged by the individual, the department shall forward the appeal to the child care background screening review committee established in subdivision (4) of this subsection. The child care background screening review committee shall make a final decision on the written appeal, and such decision shall be made in a timely manner. Such decision shall be considered a noncontested final agency decision by the department that made the determination of ineligibility under this section and appealable under section 536.150. Such decision shall be appealed within thirty days of the mailing of the decision.
(4) There is hereby established a "Child Care Background Screening Review Committee", which shall consist of the directors of the department of health and senior services and the department of social services or the directors' designee or designees.
(5) Any decision by the child care background screening review committee to grant an eligibility exception as allowed in this section shall only be made upon the approval of all committee members.
10. The department of health and senior services and the department of social services are authorized to enter into any agreements necessary to facilitate the sharing of information between the departments for the enforcement of this section including, but not limited to, the results of the criminal background check or any of its individual components.
11. Nothing in this section shall prohibit either the department of health and senior services or the department of social services from requiring more frequent checks of the family care safety registry established under section 210.903 or the central registry for child abuse established under section 210.109 in order to determine eligibility for employment or presence at the child care facility or receipt of state or federal funds for providing child care services either by direct payment or through reimbursement to an individual who receives child care benefits.
12. The department of health and senior services and the department of social services may each adopt emergency rules to implement the requirements of this section. Any rule or portion of a rule, as that term is defined in section 536.010, 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 and, if applicable, section 536.028. This section and chapter 536 are nonseverable and if any of the powers vested with the general assembly pursuant to chapter 536 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, 2018, shall be invalid and void.
13. The provisions of this section shall not apply to any child care facility, as defined in section 210.201, maintained or operated under the exclusive control of a religious organization, as described in subdivision (17) of subsection 1 of section 210.211, unless such facility is a recipient of federal funds for providing care for children, except for federal funds for those programs that meet the requirements for participation in the Child and Adult Care Food Program under 42 U.S.C. Section 1766.
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(L. 2018 H.B. 1350, A.L. 2019 H.B. 397, A.L. 2020 H.B. 1414)