Questions on Disqualifications: Review of BRC Results/Tables of Disqualifying Offenses

Questions in this section are about reviewing findings on an EEC Background Record Check (BRC).

Table of Contents

What are the changes to EEC’s BRC Disqualifying Offenses that went into effect on October 1, 2018?

What are the changes to EEC’s BRC Disqualifying Offenses that went into effect on October 1, 2018?

There are changes to which offenses, if found in a Background Record Check, constitute a disqualification for the candidate. These changes are outlined in the new Tables of Disqualifying Offenses. The Tables of Disqualifying Offenses apply to any offense returned from the Massachusetts Criminal Offender Record Information (CORI), Sex Offender Registry Information (SORI), or fingerprint check. The Tables of Disqualifying Offenses also include new Mandatory Disqualifications. 

If a BRC candidate has an offense on their CORI, SORI or fingerprint check that EEC has categorized and confirmed is a Mandatory Disqualification, the candidate will automatically be found not suitable for hire. A confirmed Mandatory Disqualification resulting in a not suitable determination will not be subject to review or appeal.

If a background record check identifies a confirmed Mandatory Disqualification for a current employee or affiliated individual -- regardless of when the offense occurred -- the program must terminate the candidate’s employment or affiliation within 14 calendar days of notification. In some cases, EEC will require the candidate’s employment be terminated sooner than 14 calendar days of notifications.

For more information, please refer to the Background Record Check Policies on EEC’s website, specifically: Provisional Status and Mandatory Pending Disqualifications (EEC BRC POLICY NUMBER: 19-005), and No Private Right of Action (EEC BRC POLICY NUMBER: 19-013).

What is the difference between Mandatory, Presumptive, and Discretionary Disqualifications?

What is the difference between Mandatory Disqualifications, Presumptive Disqualification reviews and Discretionary Disqualification reviews?

Any offense in EEC’s Table of Disqualifying Offenses – Mandatory Disqualifications that appears on an EEC background record check as a “conviction” will automatically result in a “not suitable” determination by EEC. This not suitable is NOT eligible for EEC’s BRC review process.  Any offense in EEC’s Table of Disqualifying Offenses – Mandatory Disqualifications that appears on an EEC background record check with a disposition other than “conviction” must be treated as a Presumptive Disqualification. 

Both Presumptive Disqualification and Discretionary Disqualification Reviews that had been run through the legacy system are currently conducted by the programs for CORI and DCF information for group and school age and residential and placement programs. EEC BRC Unit will complete reviews on all SORI and fingerprint information for all program types and all BRC information (including CORI and DCF) for family child care providers and candidates entered through the BRC Navigator.

Presumptive Disqualification reviews are eligible for a review process with an enhanced review.

(1) Presumptive Disqualification Reviews may require a written assessment by a qualified mental health professional who is not the candidate’s treating mental health professional or direct employer. The mental health professional’s assessment must:

  • Describe the nature of the assessment performed;
  • Originate from the mental health professional’s opinion after completing an evaluation; and
  • Conclude in writing whether the candidate poses an unacceptable risk of harm to the persons served by the program where the candidate is applying.

*Programs MUST obtain the mental health evaluation or the criminal justice letter if it is a presumptive review.

(2) Alternatively, the candidate may submit a letter from the candidate’s criminal justice official, including a probation or parole officer that the candidate does not pose a risk of harm to the persons served by the program where the candidate is applying.

Upon completion of the mental health assessment or receipt of a letter from the candidate’s criminal justice official a discretionary review rationale must also be completed in the Presumptive Review process. See below for the criteria for completing a Discretionary Disqualification review.

Discretionary Disqualification reviews, are a review of all relevant CORI, DCF, SORI or fingerprint information. A rationale must be completed taking into consideration the following information when conducting a review: In assessing the candidate’s suitability given the concern for children’s safety, due weight shall be given to the following factors when evaluating the candidate’s criminal offense(s) or abuse/neglect finding(s):

  • Time since the incident(s);
  • Age of the candidate at the time of the incident(s);
  • Seriousness and specific circumstances surrounding the incident(s);
  • Relationship of the incident(s) to the ability of the candidate to care for children;
  • Number of criminal offenses or findings of abuse/neglect;
  • Dispositions of criminal offenses and findings of abuse/neglect;
  • Relevant evidence of rehabilitation or lack thereof; and
  • Other relevant information, including information submitted by the candidate.

For more information, please refer to the Background Record Check Policies on EEC’s website, specifically: Provisional Status and Mandatory Pending Disqualifications (EEC BRC POLICY NUMBER: 19-005) and Recommendation from Employer during the Review Process (EEC BRC POLICY NUMBER: 19-011)

After October 1, 2018, must programs conduct Discretionary or Presumptive Disqualification reviews?

After October 1, 2018 are programs still expected to conduct Discretionary or Presumptive Disqualification reviews of candidates?

When EEC goes live with BRC Navigator, all BRC information for candidates submitted through the BRC Navigator Program Portal must be reviewed by EEC. After October 1, 2018, group and school age child care programs, residential programs, and placement agencies will continue conducting Discretionary and Presumptive Disqualification reviews of disqualifications found in CORI checks and DCF checks that are run through BRC Manager (EEC’s legacy system). EEC’s BRC Unit will continue to conduct Discretionary or Presumptive reviews of all disqualifications found in fingerprint checks and SORI checks for these programs for candidates submitted in BRC Manager. As was the case prior to October 1, 2018, for legacy cases, EEC may continue to require information from the candidate during its fingerprint review that has already been reviewed by program staff because the criminal information appears on both records; EEC, however, is prohibited by federal law from disclosing fingerprint information to programs. EEC will be responsible for reviewing all Mandatory and Mandatory Pending Disqualifications found in a CORI, SORI or fingerprint check for all new and renewal candidates with unsupervised access to children in a program whether submitted in the BRC Program Portal or BRC Manager.

How do I know if a BRC finding is Mandatory, Mandatory Pending, Presumptive or Discretionary?

How can I differentiate between a Mandatory, Mandatory Pending, Presumptive and Discretionary Disqualification?

  • If a candidate has a CONVICTION disposition in an EEC background record check, for any charge listed on EEC’s Table of Disqualifying Offenses - Mandatory Disqualifications, it will be considered a Mandatory Disqualification. EEC will review the results of all BRCs on child care candidates that include an offense that is listed in EEC’s Table of Disqualifying Offenses - Mandatory Disqualifications.
  • If a residential or placement candidate has an OPEN, PENDING, OR CONVICTION disposition on a charge listed in EEC’s Table of Disqualifying Offenses - Mandatory Disqualifications, their record will be considered a Presumptive Disqualifying background.
  • If a candidate has a PENDING or OPEN charge found during an EEC background record check, for any charge listed on EEC’s Table of Disqualifying Offenses - Mandatory Disqualifications, their record will be considered a Pending Mandatory Disqualification. EEC will send out a pending Mandatory Disqualification letter to the candidate and will determine the candidate’s suitability.
  • A candidate is considered to have a Presumptive Disqualification if they have a NON CONVICTION or NON DELINQUENT disposition on a charge listed in EEC’s Table of Disqualifying Offenses - Mandatory Disqualifications OR a PENDING, OPEN, OR CONVICITON, disposition on a charge in EEC’s Table of Disqualifying Offenses - Presumptive Disqualifications
  • A candidate has a Discretionary Disqualifying background if they have a NON CONVICTION disposition on a charge listed in EEC’s Table of Disqualifying Offenses - Presumptive Disqualifications OR any disposition for any charge listed in EEC’s Table of Disqualifying Offenses - Discretionary Disqualifications, including any charges in Addendum A.  For more information, please refer to the Background Record Check Policies on EEC’s website, specifically: Provisional Status and Mandatory Pending Disqualifications (EEC BRC POLICY NUMBER: 19-005).

What is the process for Presumptive Disqualification and Discretionary Disqualification reviews?

What is the process for Presumptive Disqualification and Discretionary Disqualification reviews?

For candidates submitted in EEC’s BRC Navigator Program Portal within BRC Navigator, EEC must review all presumptive and discretionary disqualifications. For candidates with presumptive offenses, EEC will use its discretion to determine whether a mental health or criminal justice letter is warranted. (Please note that reviews conducted by programs are not permitted to use discretion for this scenario.)

For candidates submitted in EEC’s legacy systems, programs are responsible for reviewing the offenses and determining whether they fall into the Presumptive disqualification or Discretionary disqualification category based off the Tables of Disqualifying Offenses. All Child Welfare findings are considered as a Discretionary review at this time, with the exception of supported findings of sexual abuse for candidates submitted in the BRC Navigator that will be considered presumptive. After that is decided, they “shall require from the candidate clear and convincing evidence demonstrating the candidate’s suitability for licensure, employment or affiliation in light of the concern for children’s safety.” 606 CMR 14.12(2)(e).

The steps are as follows for candidates submitted in the BRC Manager (EEC legacy system):

  1. Inform the candidate of the record and give that person the opportunity to provide additional information.
  2. If the record falls under a Presumptive Disqualification, then the program must require the candidate to provide an assessment from a qualified mental health professional or a criminal justice official letter (See 606 CMR 14.12(2)(b)).
  3. Provide the candidate with the opportunity to provide documentation, such as police reports, dockets, statements, child welfare documents, reference letters, probation or parole documents, imprisonment papers, evidence of rehabilitation, or a recommendation from an employer.
  4. Write a rationale after considering all documentation received that use the following factors: (a) time since the incident; (b) age at the time of the incident; (c) seriousness and specific circumstances; (d) relationship of the incident to the ability to care for children; (e) number of criminal offenses or findings of abuse or neglect; (f) dispositions of criminal offenses and findings of abuse/neglect; (g) relevant evidence of rehabilitation or lack thereof; and (h) other relevant information, including that submitted by the candidate.
  5. Determine whether to hire or not hire after completing the review process.
  6. Sign and submit the cover sheet back to EEC for hiring status to be updated. For more information, please refer to the Background Record Check Policies on EEC’s website, specifically: Provisional Status and Mandatory Pending Disqualifications (EEC BRC POLICY NUMBER: 19-005).

If a BRC is in process on October 1, and there is a disqualifying offense, which Table should I use?

If a candidate's BRC is in process on October 1, and there is a disqualifying offense, should the BRC Program Administrator use the new Table of Disqualifying Offenses or the old Table of CORI Offenses when conducting the Discretionary and Presumptive review?

When EEC goes live with the BRC Navigator, EEC will begin to review all BRC information for GSA and funded programs. EEC will continue reviewing all BRC results for current and prospective family child care programs, their household members and persons regularly on the premises, and any assistants, as well as informal caregivers for whom EEC presently runs a BRC. For residential programs and placement agencies, EEC will also continue to review all SORI and fingerprint results.

For candidates submitted in BRC Manager, when BRC Program Administrators for group and school age child care programs, residential programs, and placement agencies receive a CORI result on a current or prospective candidate, the record will be returned with a dated cover sheet. If the date on the cover sheet is October 1, 2018 or later, you need to use EEC’s new Tables of Disqualifying Offenses. If the date is September 30, 2018 or earlier, you would use the old Table of CORI Offenses. You will review the offenses on the record and their dispositions (Conviction, Non Conviction, Delinquent, Non Delinquent, Open, Pending) and determine how to categorize the record. Based on this categorization, you will determine if you are conducting a Presumptive review or a Discretionary review of the candidate. Any offense found on “Addendum A” under the Discretionary Table of Disqualifying Offenses must be reviewed by the group, school age, residential program or placement agency as a Discretionary offense. 

For candidates submitted in the BRC Program Portal within BRC Navigator, supported findings of sexual abuse in a DCF report constitutes a presumptive disqualification. For candidates submitted in BRC Manager (EEC’s legacy system), DCF reviews will remain unchanged from the current process. You will receive the DCF summary and you must send back the cover sheet to obtain the redacted DCF report. Once you receive the redacted DCF report, you can move forward with the Discretionary review. After you complete the Discretionary review, you must create a written rationale and return the DCF cover sheet to EEC.

For residential programs and placement agencies, all Mandatory Disqualifications must be reviewed by the programs as if they are Presumptive Disqualifications.

For group and school age child care programs that have candidates submitted in the BRC Manager System, you should only receive records that show a Presumptive or Discretionary Disqualification finding. If you receive a record that you believe has a Mandatory Disqualification according to EEC’s Table of Disqualifying Offenses – Mandatory Disqualifications, please contact a member of EEC’s BRC Unit at 617-988-7841.

For more information, please refer to the Background Record Check Policies on EEC’s website, specifically: BRC Process by Program Type (EEC BRC POLICY NUMBER: 19-004).

Is there a time frame to consider when looking at offenses or supports on a candidate’s record?

Is there a time frame to consider when looking at offenses or supports on a candidate’s record? 

No, all offenses and supports are taken into consideration, regardless of how much time has passed since the offense or support. This includes juvenile and sealed records. However, when conducting a Discretionary review, the BRC Program Administrator is to use the factors within EEC BRC regulations to make a determination. 

What should I do if an offense does not exactly match the Tables of Disqualifying Offenses?

How should I handle a review if a particular offense is not written out exactly as it appears in the Tables of Disqualifying Offenses?

Not all offenses will be found exactly how it is written on the Tables of Disqualifying Offenses.  If clarification is needed on where a specific offense is located on the Table of Disqualifying Offenses, please contact the BRC Unit at EEC by submitting a ticket at the following link: https://massgov.service-now.com/brc or calling 617-988-7841.

When will EEC begin doing all reviews of BRC information in house?

When will EEC begin doing all reviews of BRC information in house?

EEC will be reviewing all BRC record information beginning in 2019, when its new BRC Information Technology (IT) system is running. EEC will be phasing in programs to take over the review process completely.

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