Tenn. Comp. R. & Regs. 1240-04-01-.07

Current through October 9, 2024

Section 1240-04-01-.07 - CRIMINAL BACKGROUND CHECK AND STATE REGISTRY/RECORDS REVIEW PROCEDURES

(1) Criminal Background and Abuse Registry Disclosures and Reviews; Fingerprinting Requirements.

(a) The following persons are required to have a background check no more than ninety (90) days before having access to any child care agency:

1. Any person who owns or operates a child care agency;

2. Any person who applies to work in a child care agency as an employee, director or manager;

3. Any person who will provide substitute services to a child care agency for more than thirty-six (36) hours in a calendar year and who is counted in the adult:child ratio; and

4. Any person who is fifteen (15) years of age or older who will reside in a child care agency.

(b) New background checks are required when the staff member has been separated from employment from a child care provider within the State for a period of more than 180 consecutive days.

(c) Background checks are required for all staff at least every five (5) years.

(d) Requirements for disclosure of criminal/juvenile and state register history and fingerprinting, are provided by T.C.A. § 71-3-507 and as required by the Child Care and Development Block Grant Act. Such requirements may include filling out additional forms as necessary for out-of-state registry and criminal background checks.

(2) Responsibility for Providing Fingerprint Sample; Prohibition of Contact with Children Prior to Completion of Criminal History Review.

(a) The Department will pay for the costs of performing one background check per person per child care agency per year.

(b) The child care agency shall be responsible for costs associated with the background check if:

1. The fingerprint sample is rejected and the fingerprint sample must be resubmitted;

2. The child care agency submits a second fingerprint sample for an individual more than one (1) time within a thirty (30) day period; or

3. The child care agency submits a fingerprint sample for a person who is not a resident or a person who has been selected by the child care agency, substitute pool, or staffing agency to fill a position as an employee, or substitute who will work directly with children.

(3) Prohibited Criminal, Juvenile, Vulnerable Persons or Sex Offender Registry, Abuse or Neglect or Driving History; Exclusion from Contact with Children.

(a) No person shall be employed, be a licensee or operator, or provide substitute services, reside, or have any access to children in a child care agency if the criminal background check identifies an excludable criminal offense for which the person has:

1. Been convicted of, or pled guilty or no contest to (or to a lesser included offense);

2. Been, or currently is, the subject of a juvenile petition or finding that would constitute a criminal offense or lesser included offense if the child were an adult; or

3. Been named in a pending warrant, indictment, presentment, or petition.

(b) An excludable criminal offense involves:

1. The physical, sexual or emotional abuse or neglect of a child;

2. A crime of violence against a child or any person;

3. Any offense, including a lesser included offense, involving the manufacture, sale, distribution or possession of any drug; or

4. Any offense that presents a threat to the health, safety or welfare of children.

5. The criminal offenses for which a person will be excluded from a child care agency include but are not limited to the following offenses as well as their lesser included offenses (and including convictions for equivalent offenses in other states or jurisdictions):

(i) Aggravated arson (T.C.A. § 39-14-302);

(ii) Aggravated assault (T.C.A. § 39-13-102);

(iii) Aggravated child abuse (T.C.A. § 39-15-402);

(iv) Aggravated child neglect (T.C.A. § 39-15-402);

(v) Aggravated cruelty to animals (T.C.A. § 39-14-212);

(vi) Aggravated kidnapping (T.C.A. § 39-13-304);

(vii) Aggravated rape (T.C.A. § 39-13-502);

(viii) Aggravated rape of a child (T.C.A. § 39-13-531);

(ix) Aggravated robbery (T.C.A. § 39-13-402);

(x) Aggravated sexual battery (T.C.A. § 39-13-504);

(xi) Aggravated sexual exploitation of a minor (T.C.A. § 39-17-1004);

(xii) Aggravated vehicular homicide (T.C.A. § 39-13-218);

(xiii) Arson (T.C.A. § 39-14-301);

(xiv) Assault (T.C.A. § 39-13-101);

(xv) Carjacking (T.C.A. § 39-13-404);

(xvi) Child abuse, child neglect or endangerment (T.C.A. § 39-15-401);

(xvii) Criminal attempt, under T.C.A. § 39-12-101, to commit any criminal offense that requires exclusion from child care;

(xviii) Criminal exposure to HIV (T.C.A. § 39-13-109);

(xix) Criminal homicide (T.C.A. § 39-13-201);

(xx) Criminally negligent homicide (T.C.A. § 39-13-212);

(xxi) Cruelty to animals (T.C.A. § 39-14-202);

(xxii) Custodial interference (T.C.A. § 39-13-306);

(xxiii) Domestic abuse in violation of an order of protection or in violation of a restraining order (T.C.A. § 39-13-113);

(xxiv) Domestic assault (T.C.A. § 39-13-111);

(xxv) Drug offenses (felony or misdemeanor, possession, manufacturing, sale, distribution, etc.);

(xxvi) Especially aggravated burglary (T.C.A. § 39-14-404);

(xxvii) Especially aggravated kidnapping (T.C.A. § 39-13-305);

(xxviii) Especially aggravated robbery (T.C.A. § 39-13-403);

(xxix) Especially aggravated sexual exploitation (T.C.A. § 39-17-1005);

(xxx) Exploitation of a minor by electronic means (T.C.A. § 39-13-529);

(xxxi) False imprisonment (T.C.A. § 39-13-302);

(xxxii) First degree murder (T.C.A. § 39-13-202);

(xxxiii) Incest (T.C.A. § 39-13-302);

(xxxiv) Indecent exposure (T.C.A. § 39-13-511);

(xxxv) Involuntary labor servitude (T.C.A. § 39-13-307);

(xxxvi) Kidnapping (T.C.A. § 39-13-105);

(xxxvii) Rape (T.C.A. § 39-13-503);

(xxxviii) Rape of a child (T.C.A. § 39-13-522);

(xxxix) Reckless endangerment (T.C.A. § 39-13-103);

(xl) Reckless homicide (T.C.A. § 39-13-215);

(xli) Robbery (T.C.A. § 39-13-401);

(xlii) Second degree murder (T.C.A. § 39-13-210);

(xliii) Sexual battery (T.C.A. § 39-13-505);

(xliv) Sexual battery by an authority figure (T.C.A. § 39-13-527);

(xlv) Sexual exploitation of a minor (T.C.A. § 39-17-1003);

(xlvi) Solicitation of a minor (T.C.A. § 39-13-528);

(xlvii) Stalking (T.C.A. § 39-17-315);

(xlviii) Statutory rape (T.C.A. § 39-13-506);

(xlix) Statutory rape by an authority figure (T.C.A. § 39-13-532);

(l) Trafficking a person for sexual servitude (T.C.A. § 39-13-309);

(li) Vehicular assault (T.C.A. § 39-13-106);

(lii) Vehicular assault while intoxicated (T.C.A. § 39-13-106);

(liii) Vehicular homicide (T.C.A. § 39-13-213);

(liv) Voluntary manslaughter (T.C.A. § 39-13-211); and

(lv) Weapons offenses (unlawful possession, carrying, use, etc.).

(c) No person may be employed as a driver or serve as a driver for a child care agency if the person:

1. Is currently charged with; or

2. Has been convicted of, or pled guilty to, within the last five (5) years any of the following criminal offenses:

(i) Vehicular homicide;

(ii) Accidents involving death or personal injury;

(iii) Accidents involving damage to a vehicle;

(iv) Driving under the influence of an intoxicant, drug or drug producing stimulant; or

(v) Any felony involving the use of a motor vehicle while under the use of any intoxicant.

(4) Exclusion from access to child care based on a listing on a state registry.

(a) No person shall be employed, be a licensee or operator, provide substitute services, reside, or have any access to children in a child care agency if the results of the state registry review identify the person as being:

1. Listed on the Vulnerable Persons Registry;

2. Listed on the Sexual Offender Registry; or

3. Substantiated in the records of the Department of Children's Services as a perpetrator of abuse or neglect of a child.

(5) A person who has been excluded from child care agency and/or adult day care center access due to a criminal offense or registry listing has the option of requesting a waiver from the exclusion. The request for a waiver shall be sent to the Department's Director of Field Operations for Adult and Child Care Licensing.

(a) The request for a waiver shall state the basis for the request, including any extenuating or mitigating circumstances that would, in the individual's opinion, clearly warrant an exemption from the exclusion. Any documentary evidence may also be submitted with the request.

(b) Requests for waivers shall be reviewed by an advisory committee. A waiver will be granted only if the person can show that extenuating circumstances exist that clearly justify granting a waiver. The committee shall make a recommendation to the Department's Director of Child and Adult Care Licensing of whether to grant or deny the waiver request. The Director has full discretion over the final decision on whether to grant or deny the requested waiver.

(c) Any person who is the subject of an exclusion who is dissatisfied with the decision of the Department's Director of Child and Adult Care Licensing regarding a waiver may appeal such decision in writing to the Department by filing a written request for an appeal with the Department's Division of Appeals and Hearings within ten (10) days of the date of notice of the denial of the waiver to the individual, and may request an administrative hearing pursuant to the Uniform Administrative Procedures Act, compiled in title 4 chapter 5, part 3 of the Tennessee Code Annotated.

(d) The following offenses are not waivable and persons with such a conviction may not seek a waiver:

1. Appearing on a state sex offender registry or repository or the National Sex Offender Registry;

2. Felony convictions of murder; child abuse or neglect; a crime against children, including child pornography; spousal abuse; a crime involving rape or sexual assault; kidnapping; arson; physical assault or battery;

3. A drug-related offense committed during the preceding 5 years; or

4. A violent misdemeanor committed as an adult against a child, including: child abuse, child endangerment, sexual assault, or a misdemeanor involving child pornography.

Tenn. Comp. R. & Regs. 1240-04-01-.07

Original rule certified June 10, 1974. Amendment filed March 16, 1978; effective April 17, 1978. Repeal and new rule filed December 6, 1983; effective January 5, 1984. Amendment filed October 9, 1987; effective January 27, 1988. Repeal and new rule filed April 22, 1992; effective June 6, 1992. Amendment filed November 21, 2002; effective February 4, 2003. Amendment by Acts of 2003, Public Chapter 412, §§ 1(c) and 3 filed June 25, 2003; effective July 1, 2003. Amendment filed September 29, 2003; effective December 13, 2003. Amendment filed October 21, 2004; effective January 4, 2005. Amendments filed May 1, 2018; effective July 30, 2018. Amendments filed March 31, 2022; effective 6/29/2022.

Authority: T.C.A. §§ 4-5-202; 55-50-102(11) and (20); 71-1-105(a)(5) and (a)(12); 71-3-501, et seq.; 71-3-502(a)(2); 71-3-507; and 71-3-508(c); Acts 2003, Ch. 412, §§ 1(c), 2, and 3; and 49 Code of Federal Regulations Part 571.