8 Colo. Code Regs. § 1402-1-2.121

Current through Register Vol. 47, No. 11, June 10, 2024

Section 8 CCR 1402-1-2.121 - CRIMINAL RECORD CHECK

A. Criminal records checks are required under the following circumstances:

1. In order to obtain any Colorado Bureau of Investigation (CBI) and/or Federal Bureau of Investigation (FBI) fingerprint criminal history records, each applicant listed below must have their fingerprints taken and processed at a vendor approved by CBI. Approved vendors may be located using the CBI website at Colorado.gov/cbi. Payment of the fee for the criminal record check is the responsibility of the individual being checked, identified as follows:

a. Each applicant for an original license for a center, facility, or agency and any adult eighteen (18) years of age or older who resides in the licensed center, facility or agency.

b. Each exempt family child care home provider who provides care for a child and each individual who provides care for a child who is related to the individual (referred collectively in this rule section as a "qualified provider"), if the child's care is funded in whole or in part with money received on the child's behalf from the publicly funded Colorado Child Care Assistance Program; and, any adult eighteen (18) years of age or older who resides with a qualified provider where the care is provided.

2. Each applicant for an original license for a Neighborhood Youth Organization must comply with the criminal background check requirements found at section 26.5-5-308, C.R.S.

a. The applicant must ascertain whether the person being investigated has been convicted of felony child abuse as defined in section 18-6-401, C.R.S., or a felony offense involving unlawful sexual behavior as defined in section 16-22-102(9), C.R.S. The Neighborhood Youth Organization must not hire a person as an employee or approve a person as a volunteer after confirmation of such a criminal history.

B. Only in the case of a children's resident camp or school-age child care center, out-of-state persons employed in a temporary capacity for less than ninety (90) days are not required to be fingerprinted to obtain a criminal record check. Each person exempted from fingerprinting and being checked with the Department's automated system must sign a statement which affirmatively states that she/he has not been convicted of any charge of child abuse or neglect, unlawful sexual offense, or any felony. Out-of-state employees operating under this exemption must be supervised at all times by a staff member who has successfully completed all background checks.

1. Prospective employers of such exempted persons must conduct reference checks of the prospective employees in order to verify previous work history and must conduct personal interviews with each such prospective employee.

C. At the time the annual declaration of compliance (see rule section 2.107(B) is submitted to the Department, except as required per this rule section 2.121(C), a criminal record check is required only for adults living at the licensed facility who have not previously obtained one. Because the Colorado Bureau of Investigation (CBI) provides the Department with ongoing notification of arrests, owners, applicants, licensees, and persons who live in the licensed facility who have previously obtained a criminal record check, they are not required to obtain additional criminal record checks.

1. Any resident of the family child care home or qualified exempt provider home turning eighteen (18) years of age shall complete the fingerprint process at an approved vendor fourteen (14) calendar days prior to their 18th birthday.

2. The fingerprint process shall be completed at an approved vendor within five (5) calendar days of when any new resident, eighteen (18) years of age or older, begins residing in a family child care home or qualified exempt provider home. Adults must not be allowed unsupervised access to children in care until all background checks have been successfully completed.

D. Each owner and employee sixteen (16) years of age or older of a facility or agency shall complete the fingerprint process at an approved vendor. Payment of the fee for the criminal record check is the responsibility of the individual being checked or the facility or agency. The results of the criminal record check, the CBI and/or Federal Bureau of Investigation (FBI) response letters, must be maintained at the home, center, facility, or agency and must be available for review upon request by a Licensing Specialist.

1. When an individual leaves employment, the facility must submit to the Department a completed Notification of Name Removal form to request the removal of the individual's name from their facility license number in the CBI database.

2. Except as required per rule section 2.121(D)(3), any adult volunteer, working as a staff member to meet the required staff-child ratio or staff qualifications, who works fourteen (14) days (112 hours) or more in a calendar year shall complete the fingerprint process at an approved vendor. The results of the criminal record check must be maintained at the facility or agency and must be available for inspection by a Licensing Specialist. An employee operating as a volunteer to meet required staff-child ratio that does not have a completed background check on file must be supervised at all times by a qualified staff member who has successfully completed all background checks.

3. Criminal background check requests for volunteers, whose activities involve the care and supervision of children; or who have unsupervised access to children, must be submitted and successfully completed prior to caring for children or allowing the individual unsupervised access to children in child care centers (less than 24-hour care), school-age child care facilities, family child care homes, and qualified exempt provider homes.

4. Requests for a criminal record check, other than those required per this rule section 2.121(D)(4) must be completed at an approved vendor within five (5) working days of the day that the individual begins to work at the facility or agency.

a. Criminal background check requests must be successfully completed prior to an individual caring for children or allowing the individual unsupervised access to children in child care centers (less than 24-hour care), school-age child care facilities, family child care homes, and qualified exempt provider homes.

b. A National Sex Offender Registry check request must be submitted and successfully completed prior to an individual caring for children or allowing the individual unsupervised access to children in child care centers (less than 24-hour care), school-age child care facilities, family child care homes, and qualified exempt provider homes.

5. Every five (5) years, requests for FBI criminal record checks must be renewed by completing the fingerprint process at an approved vendor. An updated clearance letter or verification of the submission of the request must be obtained prior to five (5) years from the date reflected on the current clearance letter.

6. Facilities and agencies that hire individuals who have been convicted of any felony, except those listed in rule section 2.121(D)(7) below, unlawful sexual behavior, or any misdemeanor, the underlying factual basis of which has been found by the court on record to include an act of domestic violence must inform the Department of that hiring within fifteen (15) calendar days of receiving knowledge of the conviction.

7. A child care facility shall not employ or certify an individual who has been convicted of:

a. Child abuse, as defined in section 18-6-401, C.R.S.

b. A crime of violence, as defined in section 18-1.3-406(2), C.R.S.

c. An offense involving unlawful sexual behavior, as defined in section 16-22-102(9), C.R.S.

d. A felony, the underlying factual basis of which has been found by the court on the record to include an act of domestic violence, as defined in section 18-6-800.3, C.R.S.

e. A felony involving physical assault, battery, or a drug-related offense within the five years preceding the date of application for a license or certificate.

f. A pattern of felony or misdemeanor convictions within the ten (10) years immediately preceding submission of the application. "Pattern of felony or misdemeanor" shall include consideration of sections 26.5-5-317 and 26.5-5-309(4), C.R.S., regarding suspension, revocation and denial of a license, and shall be defined as:

1) Three (3) or more convictions of third (3rd) degree assault as described in section 18-3-204, C.R.S., and/or any misdemeanor, the underlying factual basis of which has been found by any court on the record to include an act of domestic violence as defined in section 18-6-800.3, C.R.S.;

2) Five (5) misdemeanor convictions of any type, with at least two (2) convictions of third (3rd) degree assault as described in section 18-3-204, C.R.S., and/or any misdemeanor, the underlying factual basis of which has been found by any court on the record to include an act of domestic violence as defined in section 18-6-800.3, C.R.S.; or

3) Seven (7) misdemeanor convictions of any type.

g. Any offense in any other state, the elements of which are substantially similar to the elements listed in this rule section 2.121(D)(7).

E. Payment of the fee for the FBI check is the responsibility of the individual who is obtaining the check or the facility or agency.

F. The Department may deny, revoke, suspend, change to probationary or fine a child care facility if the applicant(s), an affiliate of the applicant, or any person living with or employed by the applicant has been found to violate any of the provisions set forth in section 26.5-5-317(2), C.R.S.

G. The Department may deny an application for a child care facility license if the applicant is a relative affiliate of a licensee, as described in section 26.5-5-303 (1.5)(d), C.R.S., of a child care facility, which is the subject of a previous negative licensing action or is the subject of a pending investigation by the Department that may result in a negative licensing action.

H. For all CBI fingerprint-based criminal history record information checks required in this rule section 2.121, including those confirming a criminal history as well as those confirming no criminal history, the Department will conduct a comparison search on the State Judicial Department's court case management system and the sex offender registry of the Colorado Department of Public Safety. The court case management search must be based on name, date of birth, and address, in addition to any other available criminal history data that the Department deems appropriate, is used to determine the type of crime(s) for which a person was arrested or convicted and the disposition thereof. The sex offender registry search is used to determine whether the address of a licensee or prospective licensee is listed as belonging to a registered sex offender.

I. Portability of Background Checks

1. Where two or more individually licensed facilities are wholly owned, operated, and controlled by a common ownership group or school district, a fingerprint-based criminal history records check and a check of the records and reports of child abuse or neglect maintained by the Colorado Department of Human Services, completed for one of the licensed facilities of the common ownership group or school district pursuant to this rule section for whom a criminal records check is required under section 26.5-5-316, C.R.S., may satisfy the records check requirement for any other licensed facility under the same common ownership group or school district. A new fingerprint-based criminal history records check or new check of the records and reports of child abuse or neglect maintained by the Colorado Department of Human Services is not required of such an individual if the common ownership group or school district maintains a central records management system for employees of all its licensed facilities; takes action as required pursuant to section 26.5-5-309, C.R.S., when informed of the results of a fingerprint-based criminal history record check or check of the records and reports of child abuse or neglect maintained by the Colorado Department of Human Services that requires action pursuant to the Child Care Licensing Act; and informs the Department whenever an additional licensed facility comes under or is no longer under its ownership or control.

2. When a licensee is inspected pursuant to the Child Care Licensing Act and records regarding Colorado Bureau of Investigation (CBI) and/or Federal Bureau of Investigation (FBI) fingerprint-based criminal background checks, as well as records and reports of child abuse and neglect maintained by the Department, and the comparison search on the State Judicial Department's court case management system are held at a central records management system, the licensee must be afforded fourteen (14) calendar days to provide to the Department documentation necessary to verify that employees at the licensed facility have the required records related to fingerprint-based criminal background checks.

J. State-based background checks

1. The following background check requests must be submitted and successfully completed for each state an individual has resided in, in the past five years, prior to an individual caring for children or allowing the individual unsupervised access to children in child care centers (less than 24-hour care), school-age child care facilities, family child care homes, and qualified exempt provider homes:

a. State criminal history check

b. State sex offender registry check

c. State abuse and neglect registry check

8 CCR 1402-1-2.121

46 CR 22, November 25, 2023, effective 12/15/2023