Overview of Current Regulations
The regulations in force before the filing of the emergency regulations on October 11. 2001 established four categories of criminal offenses that might show up on a CORI check: mandatory disqualification, ten year presumptive disqualification, five year presumptive disqualification and discretionary disqualification.
In the event that a candidate for employment or a volunteer or trainee position had a mandatory disqualification, that candidate would have been ineligible for any position that involved potential unsupervised contact with a client of a program operated or funded by the MCB.
Candidates with a 5 or 10 year presumptive disqualification might have beeen eligible for positions involving potential unsupervised contact with clients, but only after the 5 or 10 year period had passed or the candidate's probation officer, parole officer or other criminal justice official, or qualified mental health professional concluded in writing that the candidate iwas appropriate for the position. Further, the hiring authority had to conduct a review to determine that the candidate did not pose a danger to clients.
An individual with a discretionary disqualification might have been eligible for a position involving potential unsupervised client contact only after the employer conducted a review to determine that the candidate did not pose a danger to clients.
Prior to adoption of the emergency regulations by the MCB and the other EOHHS agencies, several individuals challenged the validity of the EOHHS policy on criminal background checks which predated the regulations, and served as the basic model for the regulations. The case, which was filed in Superior Court, is entitled Cronin et al. vs. O'Leary. On August 9, 2001, Superior Court Judge Ralph D. Gants reviewed the emergency regulations promulgated by the agencies and ruled on one part of the case concerning whether it was constitutionally permissible to have a mandatory lifetime disqualification from employment in EOHHS human service positions. Judge Gants ruled that this type of disqualification deprived plaintiffs of a constitutional liberty interest, and found that individuals who had been convicted of crimes on the mandatory list were entitled to an opportunity to rebut the presumption that they pose too great a danger to work with human service clients. Specifically, he ruled that two of the plaintiffs in the case who were in the mandatory disqualification category to have a "fair opportunity to rebut the inference that, because of their prior convictions, they pose an unacceptable risk to EOHHS clients", and that this opportunity be provided no later than October 12, 2001. The Executive Office of Health and Human Services has not appealed this ruling. The Massachusetts Commission for the Blind, the Secretariat, and agencies within the Secretariat, have amended their CORI regulations to comply with the ruling.
This information is provided by the Massachusetts Commission for the Blind.