RELATES TO:
KRS
17.165,
17.500-17.580,
199.011,
199.642, Chapters 209, 506, 511,
515, 520, 525, 527, 529, 530, 336.220, 620.050-620.120,
34 U. S. C.
20921,
45 C.F.R.
98.43
NECESSITY, FUNCTION, AND CONFORMITY:
KRS
194A.050(1) requires the
secretary to promulgate administrative regulations necessary to implement
programs mandated by federal law, qualify for the receipt of federal funds, and
necessary to cooperate with other state and federal agencies for the proper
administration of the cabinet and its programs.
KRS
199.640(5)(a) requires the
secretary to promulgate administrative regulations establishing basic standards
of care and service for child- caring facilities and child-placing agencies
relating to the health and safety of all children in the care of the facility
or agency, the basic components for a quality program, and any other factors as
may be necessary to promote the welfare of children cared for or placed by the
agencies and facilities.
KRS
199.642(8) requires the
cabinet to promulgate an administrative regulation necessary to implement
child-caring or child- placing staff member background checks in accordance
with 42 U. S. C.
671(a)(20)(D). This
administrative regulation establishes background check requirements for child-
caring and child-placing staff members, reporting requirements, and
appeals.
Section 1. Definitions.
(1) "Address check" means a cabinet search of
the Kentucky or National Sex Offender Registry to determine if a person's
residence is a known address of a registered sex offender.
(2) "Cabinet" is defined by
KRS
199.011(3).
(3) "Child-caring facility" is defined by
KRS
199.011(5).
(4) "Child-placing agency" is defined by
KRS
199.011(6).
(5) "Kentucky National Background Check
Program" or "NBCP" means a background screening program administered by the
cabinet in accordance with
906 KAR 1:190.
(6) "Rap back system" is defined by
KRS
199.011(14).
(7) "Staff member" is defined by
KRS
199.642(1).
Section 2. Applicability,
Implementation, and Enforcement.
(1) This
administrative regulation shall apply to child-caring or child-placing
providers and their prospective and current staff members.
(2) A person who is a child-caring or
child-placing staff member prior to the effective date of this administrative
regulation shall submit to and complete background checks in accordance with
this administrative regulation no later than July 1, 2023.
(3) A prospective child-caring or
child-placing staff member shall complete the background check process required
in accordance with this administrative regulation and have been found to have
no disqualifying offense prior to becoming a child-caring or child-placing
staff member.
(4) To assure timely
processing of background checks, the cabinet shall prioritize the processing of
background checks for prospective child-caring and child-placing staff
members.
(5) A current or
prospective child-caring or child-placing staff member shall be subject to
background checks in accordance with Sections 3 and 4 of this administrative
regulation.
Section 3.
Procedures and Payments.
(1) To initiate the
process of obtaining a background check on a prospective or current
child-caring or child-placing staff member, the provider shall:
(a) Request that the staff member provide a
copy of his or her driver's license or other government-issued photo
identification and verify that the photograph clearly matches the staff
member;
(b) Request that the
prospective or current staff member complete and sign the:
1. DPP-500, Private Child-Caring or
Child-Placing Staff Member Waiver Agreement and Statement; and
2. DPP-501, Disclosures to be Provided to and
Signed by the Applicant Private Child-Caring or Child-Placing Staff Member;
and
(c) Log on to the
NBCP portal and enter the prospective or current staff member's demographic
information for a check of the:
1. Child abuse
and neglect central registry pursuant to
922 KAR 1:470;
2. National Crime Information Center's
National Sex Offender Registry in accordance with
34 U. S. C.
20921; and
3. Sex Offender Registry established in
accordance with KRS
17.500 through
17.580.
(2)
(a) In accordance with
KRS
199.642,
336.220, and
42 U. S. C.
671(a)(20)(D), a
child-caring or child-placing provider shall submit payment via credit or debit
card for a state and national fingerprint-supported criminal history background
check performed by the Department of Kentucky State Police (KSP) and the
Federal Bureau of Investigation (FBI), including the rap back system. If a
staff member is already enrolled in the NBCP and his or her rap back has not
expired, a new fingerprint check shall not be required, but payment shall be
required in order to receive a copy of the criminal history report.
(b) A child-caring or child-placing provider
enrolled in the Kentucky NBCP shall pay a fee not to exceed twenty-five (25)
dollars in addition to any fees charged in accordance with paragraph (a) of
this subsection for the actual cost of processing a fingerprint-supported state
and national criminal background check and for providing rap back
services.
(3) Upon
submission of payment in accordance with subsection (2) of this section, the
staff member shall:
(a) Have no more than
thirty (30) calendar days from the date of payment pursuant to subsection (2)
of this section to submit his or her fingerprints at an authorized collection
site for NBCP; and
(b) Present his
or her driver's license or other government-issued photo identification to the
designated agent at an authorized collection site prior to fingerprint
submission.
(4) Upon
completion of the background checks in accordance with this section and Section
4 of this administrative regulation, the cabinet:
(a) Shall provide notice to the provider
within seven (7) business days in accordance with
KRS
199.642(5) that the
prospective or current staff member is:
1.
Eligible for hire or continuation of employment; or
2. Not eligible for hire or continued
employment if the prospective or current staff member is found by the cabinet
to have a disqualifying background check result in accordance with Section 5 of
this administrative regulation;
(b) May release any record of state criminal
history found in the files of the Kentucky centralized criminal history record
information system to the provider or another entity included on the waiver in
accordance with subsection (1)(b) of this section; and
(c) Shall, upon receipt of written request
from an applicant, send a copy of a KSP or FBI criminal history report to the
prospective or current staff member by certified mail, restricted delivery
service. The staff member shall show proof of identity and sign to receive his
or her criminal history report from the local post office.
(5) A provider shall not be obligated to
employ or offer employment to an individual who has been found by the cabinet
to be eligible for hire pursuant to subsection (4)(a)1. of this
section.
(6) A staff member may
submit a request for a protection and permanency record in accordance with
922 KAR 1:510.
(7)
(a) If
the NBCP portal is not operational, the cabinet may request a federal waiver
that would allow a prospective staff member to undergo a:
1. Child abuse and neglect central registry
check pursuant to
922 KAR 1:470;
2. Criminal records check conducted by the
Kentucky Justice and Public Safety Cabinet or Administrative Office of the
Courts;
3. National Crime
Information Center's National Sex Offender Registry check in accordance with
34 U. S. C.
20921; and
4. Sex Offender Registry check in accordance
with KRS
17.500 through
17.580.
(b) A background check completed through the
NBCP portal shall be required as soon as operational.
Section 4. Checks of Other States.
(1) A prospective or current staff member who
resides in or has resided in another state within the last five (5) years
shall:
(a) Request from each state of current
or prior residency, in accordance with the state's laws, policies, and
procedures, with a courtesy notice to the cabinet:
1. An in-state criminal records check by:
a. Means of fingerprints for the state of
residence; or
b. Any means accepted
by a state of prior residency;
2. A check of the state's sex offender
registry or repository; and
3. A
check of the state-based child abuse and neglect registry and database;
and
(b) Direct results
of the checks required in paragraph (a) of this subsection to the Department
for Community Based Services, Division of Protection and Permanency, 275 East
Main Street, 3E-A, Frankfort, Kentucky 40621, or securely send results to
privateagencyliaison@ky.gov.
(2) If the prospective or current staff
member's current or prior state of residency participates in the FBI's National
Fingerprint File Program, the staff member shall be exempt from the
requirements of subsection (1)(a)1. of this section.
(3) In accordance with
KRS
336.220, a child-caring or child-placing
provider shall pay a fee charged by another state for a background check as
permitted pursuant to 45
C.F.R.
98.43(f) for a
prospective or current staff member.
(4) If another state fails to respond to a
check submitted in accordance with subsection (1) of this section within thirty
(30) calendar days from the date of the background check's request as verified
by the staff member, the cabinet shall:
(a)
Process a staff member's background checks and issue notice to the provider in
accordance with Section 3(4) of this administrative regulation to ensure
compliance with 45 C.F.R.
98.43(e); and
(b) Send notice in accordance with Section
3(4) of this administrative regulation if:
1.
Another state provides requested background check results at a later date;
and
2. A disqualifying background
check result is identified.
Section 5. Disqualifying Background Check
Results.
(1) Unless a rehabilitative review
pursuant to Section 8 of the administrative regulation determines the
individual is eligible to be hired, an individual shall be ineligible to be
hired or otherwise serve as a staff member if the individual:
(a) Meets a criterion specified in
45 C.F.R.
98.43(c);
(b) Has a felony conviction, entered an
Alford plea, a plea of guilty, or a plea of nolo contendere, related to:
1. A spouse, a child, sexual violence, or
death as established in 42
U. S. C.
671(a)(2);
or
2. Physical abuse, battery,
drugs, or alcohol within the five (5) year period prior to the check;
3. KRS Chapter 209, protection of
adults;
4. KRS Chapter 506,
inchoate offenses;
5. KRS Chapter
511, burglary and related offenses;
6. KRS Chapter 515, robbery;
7. KRS Chapter 520, escape and other offenses
relating to custody;
8. KRS Chapter
525, riot, disorderly conduct, and related offenses;
9. KRS Chapter 527, offenses relating to
firearms and weapons;
10. KRS
Chapter 529, prostitution offenses; or
11. KRS Chapter 530, family offenses,
excluding KRS
530.050;
(c) Has a criminal conviction relating to
child abuse or neglect;
(d) Has a
civil judicial determination related to child abuse or neglect;
(e) Has been found to have:
1. Committed sexual abuse or sexual
exploitation of a child; or
2. Been
responsible for a child fatality or near fatality related to abuse or
neglect;
(f) Has been
convicted of, or has entered an Alford plea, a plea of guilty, or a plea of
nolo contendere to:
1. A sex or violent crime
pursuant to KRS
17.165; or
2. An offense under a criminal statute of the
United States or of another state similar to an offense specified in this
paragraph;
(g) Is listed
on the:
1. Central registry established in
accordance with
922 KAR 1:470; or
2. Another state's state-based child abuse
and neglect registry or database;
(h) Has an open warrant for a disqualifying
offense established in this subsection; or
(i) Has a pending charge for a criminal
offense specified in this subsection.
(2) An individual who has received a pardon
for a disqualifying offense, has had the record expunged, or has evidenced
dismissal of a warrant or disqualifying charge may serve as a staff
member.
(3) Unless there is a
pending informal review, rehabilitative review, or appeal in accordance with
Section 6 of this administrative regulation, a provider shall be subject to a
cabinet action against the provider's license in accordance with
922 KAR 1:305, if the provider
employs a staff member who is ineligible for employment pursuant to subsection
(1) of this section.
Section
6. Notice of a Disqualifying Background Check Result and Appeals.
(1) The cabinet shall notify each prospective
or current staff member determined to have a disqualifying background check
result in accordance with Section 5 of this administrative
regulation.
(2) In addition to the
cabinet's notification in accordance with subsection (1) of this section, a
provider that receives notice from the cabinet that a prospective or current
staff member has been determined to have a disqualifying background check
result in accordance with Section 5 of this administrative regulation shall
notify the staff member of the cabinet's determination within three (3)
business days of receipt of the notice.
(3) A prospective or current staff member who
receives notice of having a disqualifying background check result in accordance
with Section 5 of this administrative regulation may:
(a) Challenge the accuracy of the cabinet's
determination by submitting a written request for informal review, including
any information the individual wishes to be considered, to the Department for
Community Based Services, Division of Protection and Permanency, 275 East Main
Street, 3E-A, Frankfort, Kentucky 40621, within ten (10) calendar days of the
date of notice in accordance with subsection (1) of this section; or
(b) Request a rehabilitative review pursuant
to Section 8 of this administrative regulation.
(4) Upon completion of an informal review
upon request pursuant to subsection (3)(a) of this section, the cabinet shall
provide written notice of the cabinet's decision to uphold or rescind the
notice of disqualifying background check result to the prospective or current
staff member.
(5) A prospective or
current staff member may appeal the results of an informal review or a
rehabilitative review pursuant to Section 8 of this administrative regulation,
in accordance with
922 KAR 1:480.
(6) If a prospective or current staff member
wishes to challenge the accuracy of a criminal background check, the cabinet
shall refer the individual to the appropriate state or federal law enforcement
agency.
(7) If a prospective or
current staff member challenges the finding that he or she is the true subject
of the results from a registry or repository check, the cabinet shall refer the
individual to the agency responsible for maintaining the registry or
repository.
Section 7.
Termination of a Staff Member upon Receipt of Notice of a Disqualifying
Background Check Result.
(1) If a prospective
or current staff member has not requested an informal review or a
rehabilitative review in accordance with Section 8 of this administrative
regulation, the child-caring or child-placing provider shall:
(a) Terminate the staff member no later than
ten (10) calendar days after receipt of notice of the cabinet's determination,
including the disqualifying background check result; and
(b) Use the NBCP to provide electronic
notification to the cabinet affirming the staff member's dismissal within three
(3) business days of termination.
(2)
(a) If
a prospective or current staff member requests an informal review or a
rehabilitative review in accordance with Section 8 of this administrative
regulation, the child-caring or child-placing provider:
1. May retain the staff member pending
resolution of the informal review or rehabilitative review; and
2. Shall ensure that the staff member:
a. Is subject to direct, onsite supervision;
or
b. Does not have duties or
proximity that involves one-on-one contact with a child in care.
(b) A provider shall
terminate the staff member if the:
1. Informal
review upholds the cabinet's determination of a disqualifying background check
result, or the rehabilitative review committee does not grant a waiver;
and
2. Staff member does not
request an administrative hearing in accordance with Section 6(5) of this
administrative regulation, in which the provider shall terminate the staff
member no later than the thirty-first calendar day following written notice of
the results of the informal review or rehabilitative review.
(c) If a staff member requests an
administrative hearing in accordance with Section 6(5) of this administrative
regulation to appeal the decision from an informal review or rehabilitative
review, the provider:
1. May retain the staff
member pending the appeal's resolution if the staff member:
a. Remains subject to direct, onsite
supervision; or
b. Does not have
duties or proximity that involves one-on-one contact with a child in care;
and
2. Shall terminate
the staff member no later than the thirty-first calendar day from the issuance
of the final order if the staff member does not prevail.
(d) Using the NBCP, the provider shall
provide electronic notification to the cabinet affirming the individual's
dismissal within three (3) business days of the termination.
Section 8.
Rehabilitative Review.
(1)
(a) A prospective or current staff member
found to have a disqualifying background check result shall be eligible for
consideration of rehabilitation under an independent review process.
(b) Consideration of a disqualifying
background check result under the rehabilitative review process described in
this section shall not apply to:
1. A
disqualifying felony offense that occurred less than ten (10) years prior to
the date of the criminal background check;
2. Any disqualifying felony or misdemeanor
offense related to abuse, neglect, or exploitation of a child;
3. Registration as a sex offender under
federal law or under the law of any state;
4. A sex or violent crime as defined by
KRS
17.165; or
5. A child abuse and neglect substantiated
finding that:
a. Occurred less than seven (7)
years prior to the date of the registry check; or
b. Involved:
(i) Sex abuse or sex exploitation of a
child;
(ii) A child fatality
related to abuse or neglect; or
(iii) A near fatality of a child related to
abuse or neglect.
(2)
(a) A
prospective or current staff member may submit a written request for a
rehabilitative review to the cabinet no later than fourteen (14) calendar days
from the date of the notice of the cabinet's determination issued pursuant to
Section 3(4) or 6(4) of this administrative regulation regarding a
determination of a disqualifying background check result.
(b) If a prospective or current staff member
requests a rehabilitative review, the staff member:
1. May be retained by the provider pending
the rehabilitative review; and
2.
Shall be subject to restrictions and termination in accordance with Section 7
of this administrative regulation.
(3) The request for a rehabilitative review
shall include the following information:
(a) A
written explanation of each disqualifying background check result, including:
1. A description of the events related to the
disqualifying background check result;
2. The number of years since the occurrence
of the disqualifying background check result;
3. The age of the individual at the time of
the disqualifying background check result; and
4. Any other circumstances surrounding the
disqualifying background check result;
(b) Official documentation showing that all
fines, including court-imposed fines or restitution, have been paid or
documentation showing adherence to a payment schedule, if applicable;
(c) The date probation or parole was
satisfactorily completed, if applicable;
(d) Employment and character references,
including any other evidence demonstrating the ability of the individual to
perform the employment responsibilities and duties competently; and
(e) Evidence that the individual has pursued
or achieved rehabilitation with regard to a disqualifying background check
result.
(4) A
rehabilitative review shall be conducted by a committee of three (3) employees
of the cabinet, none of whom were responsible for determining that the
individual has a disqualifying background check result.
(5) The committee shall consider the
information required under subsection (3) of this section, and shall also
consider mitigating circumstances including:
(a) The amount of time that has elapsed since
the disqualifying background check result;
(b) The lack of a relationship between the
disqualifying background check result and the position for which the individual
has applied; and
(c) Evidence that
the applicant has pursued or achieved rehabilitation with regard to the
disqualifying background check result.
(6) No later than thirty (30) calendar days
from receipt of the written request for the rehabilitative review, the cabinet
shall send the committee's determination on the rehabilitation waiver to the
prospective or current child care staff member.
(7) The decision of the committee shall be
subject to appeal in accordance with Section 6(5) of this administrative
regulation.
(8) A provider shall
not be obligated to accept an individual who is granted a waiver pursuant to
this section as a staff member.
Section 9. Status of Employment.
(1) A provider shall maintain the employment
status of each staff member who has submitted to a fingerprint-based criminal
background check by reporting the status using the NBCP Web-based
system.
(2) The cabinet shall
inspect a provider to verify conformity with this administrative
regulation.
Section 10.
Incorporation by Reference.
(1) The following
material is incorporated by reference:
(a)
"DPP-500, Private Child-Caring or Child-Placing Staff Member Waiver Agreement
and Statement", 04/2022; and
(b)
"DPP-501, Disclosures to be Provided to and Signed by the Applicant Private
Child-Caring or Child-Placing Staff Member", 04/2022.
(2) This material may be inspected, copied,
or obtained, subject to applicable copyright law, at the Department for
Community Based Services, 275 East Main Street, Frankfort, Kentucky 40621,
Monday through Friday, 8 a. M. to 4:30 p. M. This material may also be viewed
on the department's Web site at
https://chfs.Ky.gov/agencies/dcbs/Pages/default.aspx.