POLICY STATEMENT: Answers to Frequently Asked Questions about Background Record Checks
DATE: April 25, 2017
- Who must complete a Background Record Check through EEC?
All candidates within programs that the Department of Early Education and Care ("EEC") licenses, approves, or funds must complete a Background Record Check ("BRC"). For group, school age, center-based and residential programs and placement agencies, candidates requiring a BRC include all current or prospective employees, interns, and volunteers that have the potential for any unsupervised contact with persons receiving services from that program. The law requires family child care providers and their household members and persons regularly on the premises who are fifteen years old and above receive a full BRC. Adoption and foster care parent candidates and their household members over fifteen years old must also complete a BRC through EEC. Additionally, all transportation personnel, whether contracted or subcontracted, who provide services on behalf of EEC licensed, approved, or funded programs must receive a BRC through EEC. The law also requires that anyone who provides support services on behalf of an EEC licensed, approved or funded program that has the potential for unsupervised contact with children must complete a BRC through EEC. Informal caregivers providing child care for a child within his/her own home must complete a full BRC and relative caregivers must complete a SORI check.
- What type of information does the Department of Early Education and Care Background Record Check process include?
EEC's current BRC process requires the completion of a Massachusetts Criminal Offense Record Information ("CORI") check through the Department of Criminal Justice Information Services ("DCJIS"); a Department of Children and Families ("DCF") check of supported findings of abuse or neglect with DCF; a Sex Offender Registry Information ("SORI") check for level 2 and level 3 sex offenders registered with the Sex Offender Registry Board ("SORB"); and a state and national fingerprint-based criminal information ("fingerprint") check, which includes Massachusetts and out of state criminal information reflected on a fingerprint.
- How are BRC requests submitted to EEC?
The program is responsible for submitting a BRC request. The program may submit the request via mail using a paper consent form completed by the candidate and signed by an authorized BRC reviewer or online through BRC Manager by a BRC reviewer after obtaining the candidate's consent. Family child care providers must submit his/her BRC requests through EEC’s regional offices. Informal caregivers, whether related or not, must complete a BRC through his/her child care resource and referral agency (“CCRR”).
- Who is the Licensee of a program for BRC purposes?
The licensee is the person responsible for the administration of the EEC licensed program or facility and is the duly authorized agent of the individual, partnership, corporation, association, organization or trust, department, agency or institution of the federal government or of the Commonwealth or any political subdivision thereof. The form to apply for licensee status is on EEC's website under the header "Forms for Program Administration". The licensee of a group, school age, or residential program may be authorized to review the CORI and DCF results of a candidate.
- What if there are staff who do not have the potential for unsupervised contact with children, but I still want to run a CORI, DCF, and/or SORI check on them?
EEC is only authorized to conduct CORI, DCF and SORI checks on individuals who have "the potential for unsupervised contact with children" in EEC licensed, approved or funded programs. See Question #7 below for more information. It is presumed that all family child care providers, their household members, and those regularly on the premises of family child care homes have the potential for unsupervised contact with children. It is also presumed that adoption and foster parents or their household members have the potential for unsupervised contact with children. Transportation personnel are also presumed to have the potential for unsupervised contact with children. If it is determined that an individual does not have the potential for unsupervised contact with children or otherwise fit into one of the above categories, then the program cannot seek a BRC through EEC.
As an alternative, a program may contact the state agencies responsible for governing the CORI, DCF, and SORI checks and inquire what type of access, if any, is available to the agency by submitting a request directly through the state agency that oversees the checks. If you do access this information through an agency other than EEC, access should be limited for the subset of staff that you wish to run checks on that do not have the potential for unsupervised contact with children. EEC regulations REQUIRE that BRC checks for staff that have the "potential for unsupervised contact" be submitted directly through EEC.
- If a candidate has completed a BRC in a different state, is the other state's BRC valid for EEC purposes?
No, a BRC completed out of state is not acceptable in place of an EEC request. EEC's statute and regulations require that all BRC requests be run through a Massachusetts EEC program.
- Are transportation personnel required to receive background record checks?
Yes, programs that provide transportation services or contract or subcontract for transportation services must ensure that all drivers, monitors and other transportation personnel have a full BRC, including CORI, DCF, SORI and a fingerprint checks.
- If an individual works or resides in a program and has new charges after completing a BRC do I need to disclose the charges to the program?
It is the candidate's responsibility to disclose any new criminal charges or DCF findings to the program in accordance with the program's policies. If you reside in or are regularly on the premises of a family child care home, then you must notify the family child care provider of your new charges so they can request a new BRC.
- When is the BRC process finished?
The BRC process is complete when EEC has issued a suitability determination informing EEC that the candidate has been deemed suitable. This occurs after the CORI, DCF, SORI and fingerprint check have been completed and approved.
- What is conditional employment and who is eligible to work as a conditional employee?
Conditional employment may be offered to an employee who has approved and/or cleared CORI, DCF and SORI checks. All three checks must be completed and approved prior to conditional employment. After a notification letter is issued to the applicant, he/she is eligible to work as a conditional employee, meaning that he/she is able to have the potential for unsupervised contact with children pending the outcome of fingerprinting. An employee remains conditional until he/she completes fingerprinting and has a determination of suitable. After a suitability decision is issue, then the conditional employee will become a regular employee. It is important to keep track of conditional employees so you can track and follow up on whether the employee has been fingerprinted.
BACKGROUND RECORD CHECK QUESTIONS FOR GROUP, SCHOOL AGE, RESIDENTIAL AND PLACEMENT PROGRAMS
- Who is the BRC Reviewer of a group, school age, or residential program or a placement agency?
A BRC Reviewer includes any person in the licensed program who is a necessary participant in the hiring decision and/or who will receive, review or discuss the results of criminal background investigations or DCF BRC information of potential employees or volunteers in the program. The form to apply for BRC Reviewer status is on EEC's website under the header "Forms for Program Administration". A BRC Reviewer must complete a BRC through EEC and be determined suitable prior to reviewing other individuals' results.
- How do I request access as a BRC Reviewer on BRC Manager if I am employed at a group, school age, or residential program or a placement agency?
Only authorized BRC users of a program can request access as a BRC Reviewer. After a BRC Reviewer request has been completed and approved by EEC, then you must create a BRC Manager account. On the user dashboard, you will find a tab that states user administration, which contains a link stating, "request access as a reviewer". You should follow the instructions and enter only the last 4 digits of your social security number. Be sure to create the account with your full legal name and exactly as you submitted it for the BRC Reviewer request.
- How long does it take to complete the BRC process for an employee within a group, school age, or residential program?
It is important to complete a BRC as soon as the candidate becomes a final candidate. This process typically takes between two to three weeks, but can take up to eight weeks during high volume times. After a candidate receives a fingerprint notification letter, the program may, but does not have to, permit a candidate to work in a conditional capacity. The candidate may be fully hired after he/she has been fingerprinted and EEC has rendered a determination that the individual is suitable.
- How does an employee become suitable to work in an EEC licensed, approved, or funded program?
First, the candidate must complete a consent form. Next, EEC will process the candidate's CORI, DCF, and SORI checks. After the CORI, DCF, and SORI checks are complete, a fingerprint notification letter will be generated. CORI and DCF checks are considered complete when either no-record is found or there is a record found and the hiring authority has notified EEC that they have completed their review and are moving forward in the process. Confirmation of the completion of a SORI check occurs when a fingerprint notification letter is generated. A suitability letter will be generated after the candidate is fingerprinted and the fingerprint results have been received and processed by EEC.
- What is meant by the phrase "potential for unsupervised contact with children" relative to group, school age, residential programs and placement agencies?
The term "potential for unsupervised contact with children" is defined in EEC's BRC Regulations at 606 CMR 14.04 as, "[a] reasonable likelihood of contact with children in an EEC licensed, approved and/or funded program when no other Background Record Check cleared employee is present. 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 606 CMR 14.00. 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."
All employees, volunteers, and interns within the ratio of the program are considered to have the potential for unsupervised contact with children. EEC recommends that the best practice is to run a BRC on all direct care workers, whether or not they are included in the ratios, to avoid inadvertent unsupervised contact. For individuals who are not direct care workers, the hiring authority should assess each on a case by case bases to determine if that individual has the "potential for unsupervised contact" with children.
- When must an EEC BRC be completed on a candidate of an EEC group, school age, residential, or placement program?
A request for an EEC BRC shall be submitted when an offer for employment or approval as a volunteer or intern is made, and the EEC BRC check is the final step in the hiring process. The BRC does not have to be re-run for three years for those employees who have maintained continuous employment with the same employer, unless the employer determines a greater frequency is necessary.
If an employee, volunteer, intern or transportation personnel is hired at a new program, then he/she must complete a new BRC consent form and have his/her CORI and DCF check completed by the new employer. When the candidate receives a notification letter, then he/she may begin work at the new program within the discretion of the new employer.
If the candidate does not have a valid suitability decision or fingerprint result on file with EEC, the candidate must be schedule an appointment to be printed. If the candidate does have a valid result on file, then the employer may, at its discretion, contact EEC to request that a new suitability determination be issued to their program based on a previous determination or fingerprint result. See Question #27 for more information.
- Where must group, school age, and residential programs and placement agencies maintain its CORI, DCF, fingerprint notification, and suitability letters?
The program must keep all personnel's CORI and DCF results, fingerprint notification letters, and suitability determinations in the candidate's BRC file in the program. Candidates’ BRC consent form, identification, and statement of compliance with BRC should be kept in the candidate's personnel file.
BACKGROUND RECORD CHECK QUESTIONS SPECIFIC FOR FAMILY CHILD CARE PROGRAMS
- For family child care programs, who in the household needs to have a BRC?
For family child care programs, a BRC must be completed on all family child care providers, assistants, and all individuals residing within the home or regularly on the premises of the home who are fifteen years old and older.
- Can a family child care candidate change his/her role without completing a new BRC? For example, a household member changing his/her role to an assistant.
A candidate must complete a new BRC to change roles within a family child care home. The completed form should be submitted to the regional office for approval and the candidate will be notified of the result.
- If an employee has a break in employment, does his/her CORI need to be re-done? Does he/she need to be fingerprinted?
If an employee has a break in service of less than one year, then he/she is not required to re-complete the BRC process. If the employee has been fingerprinted through EEC within the prior three years, then EEC can transfer the results to the new program number as long as one of the exceptions for transferring suitability does not apply (see question #27 below for the exceptions).
DISPUTING INFORMATION ON A RECORD
- How does a candidate dispute the information found on the Criminal Offender Record Information check?
If the candidate believes the CORI is inaccurate or incomplete, then the candidate may make a request in writing to the Department of Criminal Justice Information Services, 200 Arlington Street, Chelsea, MA 02150.
- How does a candidate dispute the information found on the Department of Children and Families (DCF) check?
If the candidate believes the DCF check is inaccurate or incomplete, the candidate should contact the DCF Ombudsman's office at 617-748-2000.
- How does a candidate dispute the information found in a state and federal fingerprint-based check?
If the candidate believes the criminal record information is factually incorrect, the candidate may contact the agency or agencies who submitted the information to the Federal Bureau of Investigation ("FBI"), or submit a written request to the FBI's Criminal Justice Information Services Division at FBI CJIS Division, Attention: Criminal History Analysis Team 1, 1000 Custer Hollow Road Clarksburg, WV 26306.
SORI AND FINGERPRINTING QUESTIONS
- Why does a candidate of an EEC program have to be fingerprinted and receive a SORI Check?
On January 10, 2013, the Governor signed into law chapter 77 of the Acts of 2013, An Act Relative to Background Checks. The state law requires all individuals within EEC licensed, approved, and funded programs, submit to SORI and fingerprint checks in addition to the previously mandated CORI and DCF checks.
- What is a SORI check?
A SORI check is a search of the sex offender information and classifications maintained by the Massachusetts SORB for individuals who have been convicted or adjudicated for committing a sexual offense. EEC only receives information about Level 2 and Level 3 offenders.
- What information will be checked under SORI?
SORI includes the type of sex offense(s) committed, the date(s) of conviction, the sex offender's home and work/school addresses, and identifying information about the sex offender, such as age, height, and weight.
- How often must a fingerprint check be completed?
Fingerprint checks shall be conducted at least every three years pursuant to 606 CMR 14.08(7). Under 606 CMR 14.08(7)(c), individuals who fall within the following exceptions must be fingerprinted again within three years for new or continued employment if:
- The candidate has resided outside of Massachusetts;
- The candidate has disclosed to the hiring authority that new criminal charges have been filed against him/her; and
- The candidate had a break of one year or more from working in an EEC licensed, approved and/or funded program.
- Do candidates who live out of state have to be re-fingerprinted periodically?
If a candidate was residing outside of Massachusetts when they were last fingerprinted, then they do not need to be re-fingerprinted again within three years unless an exception applies. The following exceptions would require the candidate to be re-fingerprinted: (1) he/she has moved from one state to another state other than Massachusetts within the prior three years since he/she was last fingerprinted; (2) he/she has disclosed new criminal charges; or (3) has had a break of employment of one year or more.
- Can someone complete a BRC through EEC without completing the fingerprinting requirement?
If a program runs a BRC on an individual, then the program must make sure that the candidate has completed the fingerprinting component within the prior three years. If a BRC application is submitted on an prospective or current employee, volunteer or intern, then fingerprinting is mandatory unless: (1) the individual is no longer being considered for the position; (2) the individual is no longer a staff member when the program receives the individual's fingerprint notification letter; or (3) the candidate has been fingerprinted within the previous three years and does not fall within an exception contained within 606 CMR 14.08(7). See Question #24 above for more information.
- If a candidate has been fingerprinted for an EEC program previously, does the candidate have to be fingerprinted again for employment in a new program?
EEC may transfer a suitability decision from a prior program to a new program after the new program submits a BRC consent form and the candidate completes the CORI, DCF and SORI checks through the new program, which is confirmed by receipt of a fingerprint notification letter. To transfer the results, the candidate must have been fingerprinted within the past three years, and the program must confirm with the candidate that one of the exceptions described in question 24 above does not apply – (1) the candidate has not had any new charges; has not had a break in service of a year or more; and has not resided out of state. To transfer the suitability decision, the program seeking the transfer must contact the BRC Unit at 617-988-7841 with a copy of the candidate's fingerprint receipt if it is available.
- Why does EEC run CORI, DCF and SORI checks if fingerprint checks are being completed?
Fingerprint checks do not include all information contained on a fingerprint result. In Massachusetts, fingerprinting is not required for all crimes so if an individual was not fingerprinted for an offense it does not appear on his/her fingerprint record. Additionally, DCF and SORI results do not appear on a fingerprint record.
- How does a candidate register for a fingerprint appointment?
After a candidate receives a fingerprint notification letter, the candidate must schedule an appointment by calling MorphoTrust at 866-349-8130, and provide the EEC UID located on the notification letter. To make an appointment, the individual should contact MorphoTrust at (866)349-8130 to set up a fingerprinting appointment or register online at https://www.identogo.com/locations/massachusetts and select the earliest possible appointment. To register, you will need to provide the “EEC UID” that appears on the notification letter if scheduling a fingerprinting appointment.
- What is the anticipated time on receiving a suitability determination after a candidate has been fingerprinted?
Generally, it is anticipated that a suitability decision will be issued within 10 days to two weeks. During busy times, however, it can take up to 4-8 weeks to process fingerprint results and issue a suitability determination.
- Can a candidate use results from fingerprinting completed at a police station, airport or other public facility for purposes of meeting EEC's BRC requirements?
The FBI has advised Massachusetts that a candidate's fingerprinting results may only be used for its initial, intended purpose. EEC cannot use or access results if a candidate has been fingerprinted for another purpose such as gun permits, immigration, public school system, etc. EEC cannot accept fingerprint results from outside agencies, including from other state agencies.
- How does a candidate receive or replace a suitability letter?
A candidate working in a group, school age, or residential program or a placement agency will receive a suitability letter from his/her program. The program may print the letter from the BRC manager database for up to three years. All other candidates will receive a suitability letter from EEC by mail at his/her address on file. If a candidate has misplaced his/her suitability letter, then the candidate should contact the BRC Unit at 617-988-7841 or EEC.BRC@state.ma.us.
- How does a candidate and a program receive the actual results from the fingerprint check?
EEC does not disseminate actual fingerprint results to the program because EEC is prohibited by its federal fingerprinting authority from disseminating fingerprint results. If EEC determines that there is information that must be reviewed, then EEC may only contact the candidate about the information and is prohibited from contacting the program about the results. EEC will issue a suitability determination after reviewing the fingerprint information. EEC will contact the program if it must remove a candidate from employment due to a fingerprint result.
- What is a discretionary review?
A discretionary review is the appeals process that EEC offers to any person who has adverse information from a BRC, including within a CORI, DCF, SORI or a fingerprint check. EEC’s BRC regulations at 606 CMR 14.00 et seq. contains details about what information is reviewed, and includes a table of crimes at 606 CMR 14.18 explaining which crimes constitute discretionary and presumptive disqualifications for CORI and fingerprint information. A supported finding of abuse or neglect in a 51B report issued by DCF constitutes a discretionary disqualification. When a candidate has adverse information on his or her record, then the candidate has the opportunity to submit other relevant information to assist with determining whether the candidate poses an unacceptable risk of harm to children within the position sought. Discretionary reviews are completed by EEC’s BRC Unit or the licensed, approved or funded programs when authorized.
- Who is required to go through a discretionary review and presumptive review process?
Any individual with a mandatory or discretionary disqualification contained within a CORI, DCF, SORI and/or fingerprint information as a "discretionary disqualification" pursuant to 606 CMR 14.12(1) must go through the review process. CORI and fingerprint discretionary and presumptive disqualifications are included in 606 CMR 14.18 as well as any other crime found on the record that EEC's General Counsel believes constitutes a review. Any individual with a positive SORI result must undergo the presumptive review process. All DCF supported findings of neglect or abuse are considered discretionary disqualifications.
- How is a candidate notified if a discretionary review is needed?
The candidate is notified of an obligation to undergo a discretionary review by mail from EEC's BRC Unit, or by the BRC Reviewer at the group, school age or residential program or placement agency. The candidate will be presented with the CORI, DCF, SORI, and/or fingerprint findings and will be given the opportunity to present information to respond to the allegations.
- How long does the candidate have to submit a discretionary review request?
If a candidate receives a notification from EEC of the discretionary disqualification, then EEC allows the candidate twenty-one (21) calendar days to submit the information to EEC. If the hiring authority at a center-based program is conducting the review, then the program has the discretion to establish how long a candidate has to submit additional documentation. The program must establish a reasonable process.
- What documents are needed from the candidate to complete the discretionary review?
The BRC Reviewer or EEC's BRC Unit may request from the candidate additional information from the police, courts, prosecuting attorneys or any other knowledgeable source. The documentation can include, but is not limited to, police reports, court docket reports, reference letters, probation terms, imprisonment, and/or rehabilitation documents. A personal statement, either verbal or written, is required.
- What are the factors used in making a decision during the discretionary review process?
EEC regulations under 606 CMR 14.13 require that EEC consider the following factors: (1) time since the offense or conviction; (2) age of the candidate at the time of the offense; (3) seriousness and specific circumstances of the offense; (4) relationship of the criminal act to the nature of the work to be performed; (5) number of abuse or neglectful acts (DCF), criminal offenses (CORI and fingerprint), or underlying sexual offenses (SORI); (7) any relevant evidence of rehabilitation or lack thereof; and (8) any other relevant information, including information submitted by the candidate.
- How long does the discretionary review process take?
EEC's discretionary review process generally takes between 2-8 weeks. The process may be delayed if a candidate does not timely submit the required information or does not respond promptly. BRC reviews are completed in the order that they are received. A center-based program's discretionary review process timeframe is within the discretion of the program.
- Is the candidate allowed to work while he/she undergoes a discretionary review?
A candidate is not allowed to work and have unsupervised contact with the clients the program services until the CORI, DCF, and SORI are approved and the program (or applicant) receives the candidate’s fingerprint notification letter. If a candidate is under discretionary review for a fingerprint hit, then the candidate may be allowed to work conditionally at the discretion of EEC pending the outcome of EEC's suitability determination. If a candidate has a disqualifying background posing a risk of harm to children, then EEC may require that the individual be removed from a position with the potential for unsupervised contact with children/residents while EEC or the BRC Reviewer analyzes the disqualifying information.
- Is a candidate required to advise the program if he/she is completing the discretionary review process with EEC?
No, if a candidate is working in a program, then he/she has no obligation to notify the program that he/she is undergoing a discretionary review with EEC. The discretionary review information is mailed to the candidate and EEC works with him/her directly. If the results are concerning, then EEC may notify the program directly.
- How will the candidate be notified once the discretionary review process is completed?
If the discretionary review process is being completed by EEC for a CORI and/or DCF hit then a fingerprint notification letter will be sent to either the candidate directly or the program for which the candidate is affiliated. If a fingerprint hit is being reviewed, then a suitability determination would be sent to either the candidate directly or the program. If the discretionary review process is being completed by a program for CORI and/or DCF hit, then the program will inform EEC if the program has decided to move forward with hiring the candidate. When EEC has received notification of approval by the program, then a fingerprint notification letter will become available.
- Does the candidate receive a copy of the completed discretionary review?
The candidate will not receive a copy of the completed discretionary review unless he/she has the right to appeal the findings.
- If the review is denied, does the candidate have appeal rights?
EEC provides appeal rights to those who lose a license as a result of a BRC denial. Appeal rights are not provided to employees, volunteers, and interns within group, school age, or residential programs.