10-148-34 Me. Code R. § 3

Current through 2024-38, September 18, 2024

Section 148-34-3 - BACKGROUND CHECKS

A.Individuals subject to comprehensive background checks. Every Child Care Provider must request a comprehensive background check for themselves, all current and prospective Staff Members, all Household Members in a Family Child Care, over the age of eighteen, and any other individuals whose activities involve the care or supervision of Children or who have unsupervised access to Children while in the care of the Child Care Provider.

1. Under limited circumstances in which an individual, age 18 or older, residing in a Family Child Care is unable to be fingerprinted, the Department may conduct name-based State and Federal criminal background checks. A statement from the individual's medical provider must be provided to the Department and include a general statement regarding the individual's condition that impedes the ability to be fingerprinted. This may include that the individual is homebound due to age or disability.

B.Individuals not subject to comprehensive background checks. Individuals who are not subject to comprehensive background checks may only have supervised access to children who are served by the provider. Comprehensive background checks are not required for individuals who only have infrequent and irregular supervised access to children, including but not limited to, parents, delivery persons, contractors performing maintenance and repairs and waste removal persons.

C.Individuals changing employers. An individual with a qualifying background check that complies with this section, completed within the last five years, and is currently employed as a Staff Member or has been employed as a Staff Member within the past 180 days is not required to request a new background check when seeking employment by a different Child Care Provider.

D.Components of a comprehensive background check. The following registries, repositories, and databases will be checked for each individual for whom a background check is requested, with the mandatory use of fingerprints as described below:

1. National Crime Information Center (NCIC) National Sex Offender Registry and Federal Bureau of Investigation (FBI) fingerprint check using Next Generation Identification.

2. In the State where the individual resides: State Child Abuse and Neglect registry/ database, State Bureau of Identification (SBI) or comparable State agency's crime repository with fingerprints, and State Sex Offender Registry.

3. In each State where the individual has resided for the previous five years: State Child Abuse and Neglect registry/ database, SBI or comparable State agency's crime repository with or without fingerprints, and State Sex Offender Registry.

E.Process required. Any individual for whom a Child Care Provider is required to request a background check must consent to having their fingerprints taken. The State Police will take (or cause to be taken) the individual's fingerprints and will forward the fingerprints to the State Bureau of Identification to check the required registries, repositories, and databases listed above.

1. The Department upon receipt of the individual's criminal history report will conduct a search of Maine's Child Abuse and Neglect database.

2. As applicable, the Department will request a search of all registries, repositories, and databases for each State where the individual has resided for the previous five years.

F.Frequency. Background checks must be requested at least once every five years for each individual requiring a background check under this Rule.

G.Letter of Eligibility. The Department shall provide results of the background check, in the form of two letters, a Child Care Provider Letter of Eligibility and a Staff Member Letter of Eligibility. Both letters are sent directly to the individual indicating eligibility or ineligibility within 45 days of the submitted request.

1. A prospective Staff Member may not begin working for a Child Care Provider until after furnishing the Child Care Provider with a Child Care Provider Letter of Eligibility that indicates that the Staff Member is eligible.

2. When the Department has requested out of state searches in accordance with 3(E)(2) of this rule and has not yet received results and has reached 45 days from the submitted request, the Department may issue a Child Care Provider Letter of Eligibility based on all other available information. The Department will issue a second Child Care Provider Letter of Eligibility and Staff Member Letter of Eligibility if additional information from the out of state search changes the individual's eligibility.

H.Appeal Rights.If an individual is ineligible due to the results of the background check the Staff Member Letter of Eligibility will include the basis for the individual's ineligibility along with information about how to appeal the result in accordance with Section 4 of this rule.

I.Confidentiality. The results of individual background checks shall not be publicly released or shared unless the data is unidentifiable and/or aggregated.

J.Ineligible for Employment. Any of the following is considered disqualifying information:

1. Registration on a State or National Sex Offender Registry, or information that the individual is required to be listed on such a registry;

2. A substantiated Finding of Child Abuse or Neglect by the Department, or any comparable Department of another State;

3. Felony conviction for any of the following crimes:

a. Murder,

b. Child Abuse or Neglect,

c. A crime against Children, including Child pornography,

d. Spousal abuse,

e. A crime involving rape or sexual assault,

f. Kidnapping,

g. Arson,

h. Physical assault/battery,

i. A drug-related offense committed during the preceding five years.

4. Conviction of a violent misdemeanor committed as an Adult against a Child, including Child abuse, Child endangerment, sexual assault, or a misdemeanor involving Child pornography.

5. Conviction of a misdemeanor, as specified by the Department, within the preceding 10 years, to include;

a. Reckless conduct

b. Domestic violence assault

c. Domestic violence terrorizing

d. Domestic violence stalking

e. Assault

f. Assault while hunting

g. Domestic violence criminal threatening

h. Domestic violence reckless conduct

6. An individual will be determined ineligible if they refuse to consent to a background check or knowingly make materially false statements in connection with such a background check.

K.Responsibility of Child Care Provider. No Child Care Provider shall employ a Staff Member who has not furnished a Child Care Provider of Letter of Eligibility indicating that the Staff Member is eligible, nor allow any individual known by the Child Care Provider to be ineligible under this Rule to have access to any Child in the Child Care Provider's care.

L.Denial of License. If disqualifying information is found in any of the registries, repositories, and databases required for the background check for a Child Care Provider or Household Member within a Family Child Care, or if that Child Care Provider or Household Member is otherwise ineligible because they refuse to consent to a background check or knowingly make materially false statements in connection with such a background check, no License shall be issued to that Child Care Provider.

M.Discretionary background checks. The Department may at its discretion request that a Child Care Provider, Staff Member, or Household Member sign a release authorizing the Department authority to conduct a background check with the State Bureau of Identification (SBI), the state's child abuse and neglect database, and the state sex offender registry. Results of discretionary name and date of birth background checks are subject to all the provisions of this rule, including section 3(J)(1) -(6) and section 4 of this rule.

10-148 C.M.R. ch. 34, § 3