The Massachusetts Board of Elementary and Secondary Education
Regulations on Criminal History Checks for School Employees, 603 CMR 51.00 - Proposed for Emergency Adoption on September 24, 2013
I am presenting to the Board of Elementary and Secondary Education proposed Regulations on Criminal History Checks for School Employees. The state law that directs the Board to adopt the regulations was amended just a few weeks ago and it affects new school employees as of the current school year. For that reason, I am recommending that the Board vote on September 24, 2013 to adopt the regulations as emergency regulations, so they can take effect immediately and would be in effect for three months. During that time, the Department of Elementary and Secondary Education would seek additional public comment. With the Board's approval, I would bring back the regulations to the Board for a final vote at your meeting on December 17, 2013.
Background on the Law
Last winter, the Legislature enacted and the Governor signed into law a new statute requiring fingerprint-based criminal history checks for any employees of schools or child-care providers who have direct and unmonitored access to children. As I reported to you in January, this legislation brings Massachusetts in line with all other states in requiring national criminal background checks for school employees. These national criminal background checks will be an important addition to the state criminal background checks (CORI checks) currently required of school employees, for the protection of children.
After the initial law was signed by the Governor, the FBI notified our state public safety agencies that certain technical corrections had to be made to the law before it could be implemented. The Legislature passed the corrective legislation and on September 3, 2013, the Governor signed into law An Act Relative to Background Checks, Chapter 77 of the Acts of 2013. The law is ready for implementation. It directs the Board of Elementary and Secondary Education to adopt regulations covering public and private schools, and gives the Board of Early Education and Care similar authority with respect to early education providers.
All teachers, other school employees, and bus drivers newly hired for the 2013-2014 school year must undergo these checks during the current school year. Previously hired school employees must undergo national criminal background checks by the start of the 2016-2017 school year. Going forward, all newly hired employees will be subject to the checks. Schools and districts, at their discretion, will also have the authority to conduct national criminal background checks on volunteers and employees of vendors and subcontractors. Our Department will have access to the results of state and federal criminal record checks in connection with licensure issues and investigations of alleged misconduct by educators.
Implementation
The Executive Office of Public Safety and Security (EOPSS) conducted a procurement for a vendor to collect and process fingerprints, which must be taken to support the national criminal background check. EOPSS selected MorphoTrust, a leader in the field of criminal history processing, based in Billerica, Massachusetts as the vendor. EOPSS and MorphoTrust anticipate a start date of October or November 2013 for the collection of fingerprints under the new law. MorphoTrust will collect the fingerprints at dedicated facilities established around the state, and transmit the fingerprints electronically to the Massachusetts State Police Identification Section, which will forward the prints to the FBI. Any records identified by the FBI will be transmitted to the Massachusetts Department of Criminal Justice Information Services (DCJIS). DCJIS will be responsible for ensuring that the information contained in the record is consistent with Massachusetts Criminal Offender Record Information requirements and for sending the information to school employers.
Outreach and Collaboration on the Proposed Regulations
Our Department has worked with the Executive Office of Education, EOPSS, and other public safety agencies to draft the regulations to carry out the purpose and intent of the new statute. Although we were operating under tight time constraints, we have shared the draft regulations with a wide range of stakeholders, including the Massachusetts Teachers Association, the American Federation of Teachers-Massachusetts, the Massachusetts Association of School Committees, the Massachusetts Association of School Superintendents, the Massachusetts Association of School Business Officers, the Massachusetts Association of School Personnel Administrators, the Massachusetts Organization of Educational Collaboratives, the Massachusetts Association of Approved Private Schools, the Massachusetts Charter Public School Association, and the Department of Early Education and Care. This outreach and ongoing collaboration has put us in a strong position to carry out the responsibilities of the new law.
Highlights of the Proposed Regulations
The proposed regulations are attached. They address specific areas required by the new law, including:
- confidentiality and security of criminal record information;
- mandatory safeguards to ensure individuals are protected from incomplete or inaccurate database information;
- identification of positions for which national criminal background checks are mandatory or discretionary;
- a process for relying on suitability determinations performed by previous school employers;
- timing of background checks for current employees; and
- reporting criminal record information regarding holders of Massachusetts educator licenses to the Commissioner.
The Department will update our current advisories on the CORI law and on careful hiring practices to provide additional information to schools about the new national criminal background checks. As we continue to work with EOPSS and MorphoTrust and details are finalized, we will make further information available regarding the schedule for phasing in the background checks of new and current employees, the specific process for submitting fingerprints, and the manner in which the Massachusetts Department of Criminal Justice Information Services (DCJIS) plans to make the results of the checks available to schools.
Reason for Emergency Regulations
Under the Administrative Procedure Act, G.L. c. 30A, § 3, if an agency finds that the immediate adoption of regulations is necessary for the preservation of the public health, safety, or general welfare, and that observance of the requirements of prior notice and public comment would be contrary to the public interest, the agency may dispense with the usual notice and comment requirements and adopt the regulation as an emergency regulation. An emergency regulation remains in effect no longer than three months, unless during that time the agency follows the notice and comment process.
Because the background checks statute was just amended on September 3, 2013 and it affects new school employees as of the current school year, we need to have the regulations in place as soon as possible to assist schools and districts as well as their current and prospective employees. With the Board's approval, the Department will provide notice and an opportunity for public comment on the emergency regulations, in accordance with the requirements of G.L. c. 30A, § 3, within the next three months, and then bring them back to the Board for final action in December.
I recommend that the Board vote to adopt the emergency regulations this month. If you have any questions on the proposed regulations, please contact Deputy Commissioner Jeff Wulfson, at 781-338-6500, or me. Lucy Wall, Associate General Counsel, and Cathleen Cavell of our legal staff will join Deputy Commissioner Wulfson at the September 24 Board meeting to respond to your questions.
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