Mass. Gen. Laws ch. 6 § 172O

Current through Chapters 1 to 249 and Chapters 253 to 255 of the 2024 Legislative Session

Section 6:172O - Fingerprinting of qualified entities

(a) As used in this section, the following words shall, unless the context clearly requires otherwise, have the following meanings:

"Care", the provision of care, treatment, education, training, instruction, supervision or recreation to children; provided, that care shall include adoption and foster care.

"Covered individual", an individual who has, seeks to have or may have access to a child or children, served by a qualified entity, as an adoptive or foster parent or prospective adoptive or foster parent.

"Identification document", a document made or issued by or under the authority of the United States government, a state, political subdivision of a state, a sponsoring entity of an event designated as a special event of national significance, a foreign government, political subdivision of a foreign government, an international governmental or an international quasi-governmental organization which, when completed with information concerning a particular individual, is of a type intended or commonly accepted for the purpose of identification of individuals.

"Qualified entity", a business or organization, whether public, private, for-profit, not-for-profit or voluntary, that provides care or care placement services, including a business or organization that licenses or certifies others to provide care or care placement services; provided, that qualified entity shall include adoption agencies, foster care agencies, entities providing adoption or foster care services, entities providing adoption or foster care placement services and providers under contract with the department of children and families.

(b) A qualified entity shall require that all covered individuals are fingerprinted for the purposes of obtaining a state and national fingerprint-based criminal background check of the state and Federal Bureau of Investigation criminal history databases, as authorized by 34 U.S.C. section 40102(a).

(c) A qualified entity may obtain a state and national fingerprint-based criminal background check of the state and Federal Bureau of Investigation criminal history databases, as authorized by 34 U.S.C. section 40102(a), for the purpose of determining whether a covered individual has been convicted of a crime that bears upon the covered individual's fitness to have responsibility for the safety and well-being of children. Any qualified entity that contracts with the department of children and families and any qualified entity that is licensed by the department of early education and care shall also receive all conviction data, arrest data, sealed record data and juvenile arrest or conviction data.

(d) A qualified entity that seeks to obtain said state and national fingerprint-based criminal background check under this section shall first submit a request to the department of criminal justice information services to be designated a qualified entity and execute a user agreement. Qualified entities shall be subject to the regulations of the department of criminal justice information services with respect to access to said state and national fingerprint-based criminal background check information.

(e) Requests for state and national fingerprint-based criminal background checks pursuant to this section shall be submitted in accordance with the policies and procedures established by the executive office of public safety and security, the department of criminal justice information services and the department of state police.

(f) A qualified entity is authorized to require a covered individual to be fingerprinted. No qualified entity shall request a background check pursuant to this section unless the covered individual first provides a set of fingerprints.

(g) Prior to submitting a state and national fingerprint-based criminal background check a covered individual shall complete and sign a statement authorizing consent to such a background check and notifying the covered individual that the qualified entity may request such a background check. The statement shall include the following additional information: (i) the name, address and date of birth as appearing on a valid identification document of the covered individual; (ii) a statement that the covered individual has not been convicted of a crime and, if the covered individual has been convicted of a crime, a description of the crime and the particulars of the conviction; (iii) notification of the rights of the covered individual to obtain a copy of the background check and the process by which the covered individual may appeal the results of the background check to challenge the accuracy or completeness of the information contained in the background report; and (iv) notification that prior to the completion of the background check the qualified entity may choose to deny the covered individual access to children.

(h) Fingerprints shall be submitted to the identification section of the department of state police for a state criminal history check and forwarded to the Federal Bureau of Investigation for a national criminal history check, according to the policies and procedures established by the identification section of the department of state police and by the department of criminal justice information services. The department of state police and the Federal Bureau of Investigation may search criminal justice databases including all latent fingerprint submissions. Fingerprint submissions may be retained by the Federal Bureau of Investigation, the state identification section of the department of state police and the department of criminal justice information services to assist qualified entities authorized under this section to ensure the continued suitability of covered individuals to provide care for children. The department of criminal justice information services may disseminate the results of the state and national criminal background checks to the qualified entity and authorized staff of the qualified entity.

(i) A qualified entity may receive all available criminal offender record information and the results of checks of state and national criminal history information databases under 34 U.S.C. section 40102. The department of children and families, any qualified entity that contracts with the department of children and families and any qualified entity that is licensed by the department of early education and care shall also receive all conviction data, arrest data, sealed record data and juvenile arrest or conviction data. Upon receipt of the results of the state and national criminal background checks, the qualified entity shall treat the information according to sections 167 to 178, inclusive, and the regulations promulgated thereunder regarding criminal offender record information. Information obtained by the qualified entity under this section shall be used only for determining the suitability of the covered individual's fitness to have responsibility for the safety and well-being of children and shall not be used or disseminated for any other purpose. Qualified entities shall also provide covered individuals with information regarding how to obtain a copy of the criminal history record information and the process by which the covered individual may appeal to challenge the accuracy or completeness of the information contained in the criminal history record information.

(j) An authorized qualified entity submitting background checks pursuant to this section shall also submit a sex offender registry information check to the sex offender registry board for covered individuals.

(k) Notwithstanding subsections 9 and 9 1/2 of section 4 of chapter 151B, if the qualified entity receives criminal history record information from the state or national fingerprint-based criminal background checks that includes no disposition or is otherwise incomplete, the qualified entity may request that a covered individual provide additional information regarding the results of the criminal background checks to assist the qualified entity in determining suitability.

(l) Upon receipt of the results of a state and national criminal background check for a covered individual, the authorized entity shall review the results and determine the suitability of the covered individual.

(m) There shall be a fee charged for fingerprint-based background checks under this section, established by the secretary of administration and finance in consultation with the secretary of public safety and security, to offset the costs of operating and administering a fingerprint-based criminal background check system. The secretary of administration and finance in consultation with the secretary of public safety and security, may increase the fee accordingly if the Federal Bureau of Investigation increases the fee for its fingerprint background check service. Any fees collected from fingerprinting activity under this section shall be deposited into the Fingerprint-Based Background Check Trust Fund established under section 2HHHH of chapter 29.

(n) Nothing in this section shall be construed to prohibit the department of children and families from requesting or conducting state or national criminal background checks on covered individuals or from disseminating the results of such criminal background checks to qualified entities where authorized by federal and state law as applicable.

Mass. Gen. Laws ch. 6, § 172O

Amended by Acts 2021, c. 29,§ 3, eff. 7/29/2021.