214 R.I. Code R. 214-RICR-10-00-1.8

Current through November 7, 2024

Section 214-RICR-10-00-1.8 - Criminal Record Background Checks

1.8.1General Requirements

A. A nationwide criminal record background check includes the taking of fingerprints. An individual subject to a criminal record background check may also be required to undergo an employment background check, and/or a sex offender check, and/or a child abuse and neglect registry check for substantiated allegations of child abuse and neglect.

B. Individuals Subject to Criminal Record Background Check(s)

1. Statewide and nationwide criminal record background checks are required for prospective:

a. Foster parents and visiting resources for children receiving Department services and household members, age eighteen (18) or over.

b. Adoptive parents and household members age eighteen (18) or over.

c. Legal guardians and household members age eighteen (18) or over.

d. Owners and operators of:

(1) Residential child care facility(s);

(2) Child Care Center(s) and Family Child Care Home(s);

(3) Child Placing Agency(s); and

(4) Community-based program(s) required to be licensed or certified by the Department.

e. Applicants for positions involving supervisory or disciplinary power over or routine contact with a child(ren) without the presence of other employees, including any prospective employees, volunteers and consultants of a:

(1) Residential Child Care Facility;

(2) Child Care Center or Family Child Care Home;

(3) Child Placing Agency; or

(4) Community-Based Programs required to be licensed by the Department.

f. Applicants for employment in any Department position.

g. Volunteers, interns, and consultants applying for Department positions that involve supervisory or disciplinary power or routine contact with a child(ren) without the presence of other employees.

2. Statewide criminal record background checks are required for prospective:

a. Department volunteers and consultants applying for positions that do not involve supervisory or disciplinary power or routine contact with a child(ren) without the presence of other employees;

b. Volunteers of residential child care facilities, child care centers, or family child care centers licensed by the Department;

c. Family child care home household members, age eighteen (18) or older;

d. Respite care providers; and

e. Members of the Board of Directors of a child placing agency.

3. Statewide criminal record background checks may be required for individuals who:

a. Are subjects of reports of child abuse and/or neglect;

b. Are referred to the Department for services or are adult household members of individuals referred to the Department for services; or

c. Have contact with children receiving services from the Department.

4. An individual who requires a nationwide criminal record background check is also subject to the statewide criminal record background check.

1.8.2Criminal Record Background Checks - Prospective Foster and Adoptive Parents

A. Statewide and nationwide criminal record background checks are completed on all prospective foster and adoptive parents and prospective visiting resources for children receiving Department services and their household members over age eighteen (18). All nationwide criminal record background checks include the taking of fingerprints. A visiting resource is an individual who agrees to maintain regular contact, which may include overnight and weekend visitation, with a child in care and is a prospective foster care resource.

B. Children are not placed in foster homes pending licensure until all required background checks are completed.

C. Statewide Criminal Record Background Check:

1. In the case of a foster or adoptive home licensed through a child placing agency, it is the responsibility of the child placing agency to ensure that the statewide criminal record background check is completed on applicants and their household members eighteen (18) and over.

2. As part of the re-licensing process, a statewide criminal record background check is completed by:

a. Department licensing staff for foster and adoptive resources licensed through the Department.

b. The child placing agency staff person for foster and adoptive resources licensed through the child placing agency.

3. Department staff are prohibited from providing copies of this information to persons outside of the Department. Staff refer subjects of a criminal record background check, who wish copies of clearance results, directly to the Department of the Attorney General.

D. Nationwide Criminal Record Background Check

1. The applicant or adult household member is instructed by the assigned Department or child placing agency staff to apply to the Bureau of Criminal Identification of the state police or the local police department for a nationwide criminal record background check.

a. The applicant is provided with and instructed to bring to law enforcement agency a Fingerprint Affidavit. The Fingerprint Affidavit includes the Criminal Record Background Checks Addendum - Disqualifying Information and informs the law enforcement agency where to send the results (either to the Department or the Child Placing Agency).

b. A criminal record background check is conducted without charge to prospective foster parents and/or adoptive parents. In the case of prospective adoptive parents, the Department or the child placing agency conducting the adoption home study is responsible for all costs relating to the checks.

2. The Department is provided with details of criminal convictions in addition to being notified that there is disqualifying information.

a. If the Department receives information regarding a history of non-disqualifying criminal information, this information is reviewed prior to proceeding with licensing.

b. An applicant with a conviction of an offense that is not automatically disqualifying may be denied licensure if it is determined that the conduct of the applicant impacts upon the fitness and suitability of the applicant to provide child care.

c. The Department considers the following factors to make a determination on the suitability of the caretaker to care for a child:

(1) Type of conviction

(2) Number of convictions

(3) The age of the individual at the time of the conviction

(4) The length of time that has elapsed since the last conviction

(5) The relationship between the crime and the capacity to care for children

(6) Evidence of rehabilitation

(7) Current relationships with biological children or history of caring for children

3. A child placing agency is only notified whether or not disqualifying information exists.

4. An individual applying to be an adoptive parent may not be required to submit to this check if he/she has undergone a nationwide criminal record background check for the Department within the eighteen (18) months prior to the date of application. A letter from the state or local police who completed the nationwide check verifying the date and results of that check is acceptable.

E. If disqualifying information has been discovered, the Department or the child placing agency immediately notifies the applicant in writing of the denial of licensure.

F. The notification letter informs the applicant of the right to appeal in conformance with, Complaints and Appeals and Criminal Record Background Checks, Disqualifying Information § 1.9.6 of this Part.

1.8.3Criminal Record Background Checks - Prospective Facility Operators and Employees

A. Statewide and nationwide criminal record background checks are completed on all prospective residential child care facility owners and operators, child placing facility owners and operators, child care center owners and operators, family child care home operators and owners/operators of community-based programs requiring Department licensing.

B. The applicant must undergo a state criminal check for each state the applicant has lived in the past five (5) years.

C. The applicant must undergo a Rhode Island state sex offender registry check and a national sex offender registry check.

D. For a nationwide criminal record background check, the applicant is instructed to apply to the Rhode Island Bureau of Criminal Identification.

1. Any expense associated with the criminal record background check is paid by the applicant and/or requesting agency.

2. The applicant completes the Employment History Affidavit and Criminal History Affidavit.

3. The applicant is provided with and brings to the Rhode Island Bureau of Criminal Identification the Fingerprint Affidavit. The Fingerprint Affidavit includes the Criminal Record Background Checks Addendum, Disqualifying Information.

E. Results of the criminal record background check, identifying the nature of any disqualifying information, are sent to the Department.

1. If the Department receives information regarding a history of non-disqualifying criminal information:

a. The information is reviewed prior to proceeding with licensing.

b. An applicant with a conviction of an offense that is not automatically disqualifying may be denied licensure if it is determined that the conduct of the applicant impacts upon the fitness and suitability of the applicant to provide child care.

c. The Department considers the following factors to make a determination on the suitability of the caretaker to care for a child:

(1) Type of conviction

(2) Number of convictions

(3) The age of the individual at the time of the conviction

(4) The length of time that has elapsed since the last conviction

(5) The relationship between the crime and the capacity to care for children

(6) Evidence of rehabilitation

(7) Current relationships with biological children or history of caring for children

2. If disqualifying information has been discovered, Department staff immediately notify the applicant of the denial of licensure.

3. The notification letter informs the applicant of the right to appeal, if applicable, in conformance with Complaints and Appeals and Criminal Record Background Checks, Disqualifying Information § 1.9.6 of this Part.

F. Employees of residential child care facilities, child placing facilities, child care centers, community-based programs requiring Department licensing and of family child care homes:

1. Family child care home assistants and individuals providing emergency coverage are subject to statewide and nationwide criminal record background checks.

2. Family child care home operator ensures that the applicant completes the Employment History Affidavit and Criminal History Affidavit and forwards to Department Licensing.

3. Family child care home operator instructs the applicant to apply to the Bureau of Criminal Identification of the state police or the local police department for a nationwide criminal record background check. The applicant is provided with, and brings to law enforcement agency, the Fingerprint Affidavit, which includes the Criminal Record Background Checks - Addendum, Disqualifying Information and informs the law enforcement agency where to send results.

4. Results are sent to the Department, indicating that the applicant does or does not have disqualifying information.

a. If there is no criminal history, the Department informs the family child care home operator that the prospective employee is eligible for employment.

b. If the Department receives criminal history information that is not automatically disqualifying, this information is reviewed. An applicant with a conviction of an offense that is not automatically disqualifying may be denied licensure if it is determined that the conduct of the applicant impacts upon the fitness and suitability of the applicant to provide child care.

c. The Department considers the following factors to make a determination on the suitability of the caretaker to care for a child:

(1) Type of conviction

(2) Number of convictions

(3) The age of the individual at the time of the conviction

(4) The length of time that has elapsed since the last conviction

(5) The relationship between the crime and the capacity to care for children

(6) Evidence of rehabilitation

(7) Current relationships with biological children or history of caring for children

d. If disqualifying information has been discovered, The Department informs the family child care home operator that the prospective employee is ineligible for employment.

e. The applicant/employee is provided a copy of the notification and informed of his or her right to appeal if applicable in conformance with, Complaints and Appeals and Criminal Record Background Checks, Disqualifying Information § 1.9.6 of this Part.

5. As part of re-licensing, the Department completes a statewide criminal record background check on family child care home assistants, individuals providing emergency coverage and adult household members.

G. Employees of residential child care facilities, child placing facilities, child care centers and community-based programs requiring Department licensing:

1. Facility operator requires all persons who are offered employment, volunteers and consultants, in positions that involve supervisory or disciplinary power over a child or involve routine contact with a child without the presence of other employees, to undergo statewide and nationwide criminal record background checks, statewide and nationwide sex offender registry check, a Rhode Island Child Protective Services check and a -Child Protective Service check (also known as Adam Walsh clearance) for each state the individual has lived in the past five (5) years.

2. The Operator ensures that the applicant completes the Employment History Affidavit and Criminal History Affidavit.

3. The Operator instructs the applicant to apply to the Bureau of Criminal Identification of the state police or the local police department for a nationwide criminal record background check. The applicant is provided with, and brings to law enforcement agency, the Fingerprint Affidavit and informs the law enforcement agency where to send the results. Results of the check are sent to the employer, indicating that the applicant does or does not have disqualifying information.

4. If the facility administrator hires the employee prior to receiving the results of the check:

a. The Employment History Affidavit, Criminal History Affidavit and results of the statewide criminal record background check, indicating no history of disqualifying information, must be completed and fingerprints taken prior to the applicant beginning the job assignment.

b. The applicant ensures that prior to starting employment, the employer has received written verification that the nationwide criminal record background check has been initiated and this documentation is placed in the employee's personnel file.

c. Until the results of the check are received by the employer, the employee, volunteer, or consultant does not have supervisory or disciplinary power over or routine contact with child(ren) without the presence of others.

d. Within ninety (90) calendar days of hiring, notice is placed in the personnel file identifying the results of the criminal background check. If notice is not received within ninety (90) days, the applicant is relieved of child caring responsibilities.

5. Upon receipt of notification that disqualifying information has been discovered, the facility administrator immediately notifies the applicant that his/her application is rejected or, if an individual is already employed, that employment will be terminated in ten (10) working days.

a. This notification letter informs the employee of his/her right to appeal in conformance with Complaints and Appeals and Criminal Record Background Checks, Disqualifying Information § 1.9.6.

b. A copy of this letter is provided to Department Licensing and to the EOHHS Hearing Officer.

c. Any notifications by the EOHHS Hearing Officer to the Licensing staff within the context of the appeal are shared with the facility administrator.

6. Employees, volunteers or consultants who do not have supervisory or disciplinary power over or routine contact with children without the presence of others need not undergo the criminal record background checks.

a. The facility operator certifies in writing that the individual has no supervisory or disciplinary power over or routine contact with child(ren).

b. A copy of this certification is provided to the Department's Licensing staff and filed in the employee's personnel file.

7. A facility operator's failure to require the criminal record background check or failure to maintain the written results of the check or the above referenced certification on file constitutes grounds to revoke the license of the operator.

8. As part of re-licensing, the facility operator is responsible to ensure that a statewide criminal record background check is completed for each full or part time employee, and volunteer or consultant who has supervisory or disciplinary power over or routine contact with child(ren) without the presence of others.

9. Expungement of the results of the employee's criminal record background check must be consistent with the facility's policy on expunging the employee's personnel file after termination of employment.

H. Prior nationwide criminal record background checks for employees:

1. An applicant for employment is not required to submit to fingerprinting if he/she has submitted to the nationwide criminal record background check eighteen (18) months prior to the date of application.

2. Employer may request, from the Bureau of Criminal Identification of the state police or the local police department or the Attorney General's Office for employees of residential child care facilities, child placing facilities, child care centers or community-based programs requiring Department licensing, a letter indicating if any disqualifying information was discovered.

3. State or local police bureau of criminal identification or the Attorney General's Office responds by stating if disqualifying information was discovered (without disclosing the nature of the information) or by stating that no disqualifying information was discovered.

4. The letter from the state or local police who completed the nationwide criminal record background check, which verifies the date and results of that check, is maintained on file.

1.8.4Criminal Record Background Checks - Employees of the Department

A. All prospective employees of the Department are required to undergo statewide and nationwide criminal record background checks. The nationwide criminal record background check includes the taking of fingerprints.

B. All Training School employees, and all contractors and consultants who do business at or in any of the components of the Training School, must undergo criminal background checks and must submit to the following criminal background checks every fifth (5th) year of their employment or contractual/consultant relationship with the Training School.

1. Such background checks are conducted during the anniversary month of the employee's date of hire or assignment to the Training School. In the case of contractors/consultants, such background checks are conducted during the anniversary month of the start of that individuals work with the Training School.

2. Five (5)-year criminal background checks are done using State Bureau of Criminal Investigation (BCI) checks.

a. For employees covered by this regulation, failure to submit to these checks may be used as cause for disciplinary action, up to and including dismissal from employment with cause.

b. For consultants and contractors covered by this regulation, failure to submit to these checks may be used as cause for termination with cause of any and all agreements for consulting or contracting with the Department, with the consultant/contractor forfeiting any and all future payments within their contract for services with the Department.

c. Any criminal information found in these checks are subject to administrative review and appropriate disposition.

C. All prospective Department volunteers, interns and consultants undergo a criminal record background check(s).

1. A statewide criminal record background check is required for volunteers, interns, and consultants when their positions will not involve supervisory or disciplinary power or routine contact with a child without the presence of other employees.

2. Statewide and nationwide criminal record background checks are required for Department volunteers, interns, and consultants when their positions involve supervisory or disciplinary power or routine contact with a child without the presence of other employees.

D. For a nationwide criminal record background check, the Department instructs applicants to apply to the Bureau of Criminal Identification of the Department of the Attorney General, state police or the local police department.

1. The applicant is given a copy of the Fingerprint Affidavit and must bring this form to the law enforcement agency.

2. The Fingerprint Affidavit includes the Criminal Record Checks Addendum, Disqualifying Information and informs the law enforcement agency where to send results of the check.

E. Upon receipt of the results of the criminal record background check, the Department may take action relative to the applicant's employment:

1. If there is no criminal history, the applicant and the Department are informed in writing.

2. If the Department receives criminal history information that is not automatically disqualifying, this information is reviewed. An applicant with a conviction of an offense that is not automatically disqualifying may be denied employment if it is determined that the conduct of the applicant could endanger the health or welfare of a child and would be inconsistent with the purpose and intent of the Department.

a. The Department considers the following factors to make a determination regarding the suitability of the applicant for employment at the Department:

(1) Type of conviction

(2) Number of convictions

(3) The age of the applicant at the time of the conviction

(4) The length of time that has elapsed since the last conviction

(5) Evidence of rehabilitation

3. Upon the discovery of any disqualifying information with respect to an applicant, the Department informs the applicant of the disqualifying information.

4. The notification letter informs the applicant of the right to appeal in conformance with Complaints and Appeals and Criminal Record Background Checks, Disqualifying Information § 1.9.6 of this Part.

F. If the prospective employee, volunteer, intern, or consultant has undergone a nationwide criminal records background check within the previous six (6) months of application for employment, the Department may accept a letter from the Bureau of Criminal Identification verifying the date and results of the check.

1.8.5Appeals of Denial/Revocation of Licensure or Denial/Termination of Employment

A. If an individual is disqualified for the conviction for any Level 1 Offense (refer to Criminal Record Background Checks, Disqualifying Information, §1.9.6(A) of this Part), that individual has a right to appeal the denial or revocation of a license or the denial or termination of employment for the purpose of demonstrating that he or she has not been convicted for such an offense.

1. Within thirty (30) days of receipt of an adverse agency decision, the applicant/employee must inform the Department of his or her intent to appeal by filing a Formal Request for an Appeal with the Executive Office of Health and Human Services.

a. The applicant/employee must attach a copy of his/her disqualifying information report, which identifies the specific disqualifying offense(s).

b. The applicant/employee provides evidence that he or she has not been convicted of any Level 1 offense.

2. The Hearing Officer reviews the materials submitted on behalf of the applicant/employee and conducts the appeal process and provides a written decision in accordance with timeframes and procedures established in § 1.10 of this Part, Complaints and Appeals.

B. If an individual is disqualified for the conviction for any Level 2 Offense (refer to Criminal Record Background Checks, Disqualifying Information, §1.9.6(B) of this Part), that individual has a right to appeal the denial or revocation of a license or the denial or termination of employment for the purpose of demonstrating his/her long standing record of excellence in child care or by demonstrating that he or she has been rehabilitated.

1. An applicant/employee must inform the Department within thirty (30) days of receipt of an adverse agency decision, of his/her intent to appeal by filing a Formal Request for a Hearing.

2. The applicant/employee must attach a copy of his/her disqualifying information report, which identifies the specific disqualifying offense(s).

3. The applicant/employee must provide written references attesting to the applicant's long-standing record of excellence in child care. Such references must be from individuals who are qualified by education or experience to testify to the abilities of the applicant/ employee. Such individuals include:

a. Licensed child care providers;

b. Current or previous child care professionals;

c. Other professionals with credentials to effectively judge the applicant's qualifications in providing child care; or

d. The Department considers the following factors that may mitigate the Level 2 disqualifying information/offense by a showing that the individual has successfully rehabilitated him or herself. Those factors include:

(1) Number of convictions

(2) The age of the individual at the time of the conviction

(3) The length of time that has elapsed since the last conviction

(4) The relationship between the crime and the capacity to care for children

(5) Evidence of rehabilitation

(6) Current relationships with biological children or history of caring for children

1.8.6Criminal Record Background Checks- Disqualifying Information

A. LEVEL 1 OFFENSES

1. If an individual is disqualified for the conviction for any of the following offenses, that individual has a right to appeal for the purpose of demonstrating that he or she has not been convicted for such an offense.

a. 1st degree Felony Child Abuse or Neglect

b. 2nd degree Felony Child Abuse or Neglect

c. Felony Committed Against a Child

(1) 1st Degree Child Molestation

(2) 2nd Degree Child Molestation

(3) Child Pornography

(4) Circulation of obscene publications and shows

(5) Sale or exhibition to minor of Indecent publications, pictures or articles

(6) Child nudity in publication

(7) Transportation for indecent purposes

(8) Harboring

(9) Sex trafficking

(10) Pandering

(11) Deriving support or maintenance from prostitution

d. Felony drug offense committed less than five (5) years ago

e. Felony Involving Violence

(1) Murder

(2) Manslaughter

(3) Rape

(4) 1st degree Sexual Assault

(5) 2nd Degree Sexual Assault

(6) Kidnapping

(7) Car-Jacking

(8) 1st Degree Arson

(9) 2nd Degree Arson

(10) Mayhem

(11) Felony Assault, including Domestic Violence, committed less than five (5) years ago

(12) Felony Battery committed less than five (5) years ago

f. Human Trafficking

g. Illegal Possession of a Firearm less than five (5) years ago

B. LEVEL 2 OFFENSES

1. If an individual is disqualified for the conviction for any of the following offenses, that individual has a right to appeal for the purpose of demonstrating his or her long standing record of excellence in child care.

a. Felony Assault committed over five (5) years ago

b. Felony Battery committed over five (5) years ago

c. Robbery

d. Breaking and Entering

e. Burglary

f. Illegal Possession of a Firearm over five (5) years ago

g. Misdemeanor Domestic Assault less than five (5) years ago

h. 3rd Degree Sexual Assault

i. Felony Drug Offense committed over five (5) years ago

2. If an individual is disqualified for the conviction for any of the following offenses, when the offense does not involve

a. child, that individual has a right to appeal for the purpose of demonstrating his or her long standing record of excellence in child care or by demonstrating that he or she has been rehabilitated a. Transportation for Indecent purposes

b. Harboring

c. Pandering

d. Circulation of obscene publications and shows

214 R.I. Code R. 214-RICR-10-00-1.8

Adopted effective 12/27/2018