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Rhode Island Department of Children, Youth and Families
Department Operating Procedure
DOP Number:
100.0215
Effective Date:
July 15, 2019
Page 1 of 14
Version #:1
Revision History:
 
Director:
Trista Piccola
Section:
General Administration and Management
Title:
Criminal Record Background Check(s)
 
Legal Authority:
·     Rhode Island General Law §14-1-34
·     Rhode Island General Law §15-7-11
·     Rhode Island General Law §40-13
·     Rhode Island General Law §42-35-9
·     Rhode Island General Law §42-35-16
·     The Adam Walsh Child Protective and Safety Act of 2006, Public Law 109-248
·     The Adoption and Safe Families Act (ASFA), Public Law 105-89
·     The Child Abuse Prevention and Treatment Act (CAPTA), Public Law 93-247
·     The Fostering Connections to Success and Increasing Adoptions Act of 2008 Public Law 110-35
·     The National Child Protection Act of 1993, Public Law 103-209
 
Related DOPs:
·     Child Protective Services Clearance; DOP: 100.0155
·     Employment Background Checks Facility Operators/Facility Employees; DOP: 100.0210
·     Kinship Care; DOP: 700.0035
Related Forms:
·     RI Criminal History System Clearance (Form #034)
·     Fingerprint Affidavit (Form #109A)
·     Rhode Island Criminal History System Clearance (Form #034)
·     Employment History Affidavit (Form #108)
·    Criminal History Affidavit (Form #109)
 
 
I.     PURPOSE
 
To ensure appropriate safeguards, state and federal law mandates criminal record background checks for many individuals who provide care to children and youth.  The Department of Children, Youth and Families (hereinafter the Department), is both authorized and required to promulgate rules to implement state and federal law.  The following procedures provide detailed direction regarding who is required to submit to statewide and/or nationwide criminal record background check(s), the process for securing these checks and disqualifying information that may be reported as a consequence of the check(s).  For the purpose of this operating procedure, a nationwide criminal record background check always includes the taking of fingerprints.  An individual subject to a criminal record background check may also be required to undergo an employment background check and/or a clearance for substantiated allegations of child abuse and neglect.  Refer to DOP:100.0210, Employment Background Checks Facility Operators/Facility Employees and DOP: 100.0155, Child Protective Services Clearance.  An individual who has an adverse decision as a result of information discovered is entitled to appeal in accordance with the Administrative Procedures Act and DOP: 100.0040, Complaints and Appeals.
 
II.     PROCEDURE
 
A.     Individuals Subject to Criminal Record Background Check(s)
1.     Statewide and nationwide criminal record background checks are required for prospective:
a.     Foster parents and visiting resources for children receiving Department services and household members, age eighteen or over.
b.     Adoptive parents and household members age eighteen or over.
c.     Legal guardians and household members age eighteen or over.
d.     Owners and operators of:
i.     Residential child care facility(s)
ii.     Child Care Center(s) and Family Child Care Home(s)
iii.     Child Placing Agency(s)
iv.     Community-based program(s) required to be licensed or certified by the Department
e.     Applicants for positions involving supervisory or disciplinary power over or routine contact with a child(ren) without the presence of other employees, including any prospective employees, volunteers and consultants of a:
i.     Residential Child Care Facility
ii.     Child Care Center or Family Child Care Home
iii.     Child Placing Agency
iv.     Community-Based Programs required to be licensed by the Department
f.     Applicants for employment in any Department position.
g.     Volunteers, interns and consultants applying for Department positions that involve supervisory or disciplinary power or routine contact with a child(ren) without the presence of other employees.
2.     Statewide criminal record background checks are required for prospective:
a.     Department volunteers and consultants applying for positions that do not involve supervisory or disciplinary power or routine contact with a child(ren) without the presence of other employees.
b.     Family child care home household members, age eighteen or older.
c.     Respite care providers.
d.     Members of the Board of Directors of a child placing agency.
3.     Statewide criminal record background checks may be required for individuals who:
a.     Are subjects of reports of child abuse and/or neglect to the Child Protective Services.
b.     Are referred to the Department for services or are adult household members of individuals referred to the Department for services.
c.     Have contact with children receiving services from the Department.
4.     An individual who requires a nationwide criminal record background check is also subject to the statewide criminal record background check.  A nationwide criminal record background check always includes the taking of fingerprints.
 
B.     Criminal Record Background Checks-Prospective Foster and Adoptive Parents
1.     Statewide and nationwide criminal record background checks are completed on all prospective foster and adoptive parents and prospective visiting resources for children receiving Department services and their household members over age eighteen.  A visiting resource is an individual who agrees to maintain regular contact, which may include overnight and weekend visitation with a child in care and is considered to be a prospective foster care resource.
2.     Statewide Criminal Record Background Check:
a.     In the case of a foster or pre-adoptive home licensed through a child placing agency, it is the responsibility of the child placing agency to ensure that the statewide criminal record background check is completed on applicants and their household members eighteen and over.
b.     A Department staff person completes or ensures the completion of any required statewide criminal record background check relating to his or her work assignments.
c.     A statewide criminal record background check is completed by the designated Department staff and the results are documented on the RI Criminal History System Clearance (Form #034):
i.     As part of the initial application process for foster care or adoption licensing, the statewide criminal record background check is completed by the licensing staff person.
ii.     In the case of an emergency placement of a child in a kinship foster home prior to the completion of the licensing process, the statewide criminal record background check is completed by the assigned worker in Child Protective Services, Family Services, Juvenile Probation or the RI Training School staff responsible to place the child.  Refer to DOP 700.0035, Kinship Care.
d.     As part of the re-licensing process, a statewide criminal record background check is completed by:
i.     Department licensing staff for foster and adoptive resources licensed through the Department.
ii.     The child placing agency staff person for foster and adoptive resources licensed through the child placing agency.
e.     Department staff are prohibited from providing copies of this information to persons outside of the Department.  Staff refer subjects of a criminal record background check, who wish copies of clearance results, directly to the Department of the Attorney General.
3.     Nationwide Criminal Record Background Check
a.     The applicant or adult household member is instructed by the assigned Department or child placing agency staff to apply to the Bureau of Criminal Identification of the state police or the local police department for a nationwide criminal record background check.
i.     The applicant is provided with and instructed to bring to law enforcement agency the Fingerprint Affidavit (Form #109A). Form 109A includes the Criminal Record Background Checks Addendum - Disqualifying Information and informs the law enforcement agency where to send the results (either to the Department or the Child Placing Agency).
ii.     Criminal record background checks are conducted without charge to prospective foster parents and/or adoptive parents.  In the case of prospective adoptive parents, the Department or the child placing agency conducting the adoption home study is responsible for all costs relating to the checks.
b.     The Department is provided with details of criminal convictions in addition to being notified that there is disqualifying information.
i.     If the Department receives information regarding a history of non-disqualifying criminal information, this information must be reviewed by a supervisor and administrator prior to proceeding with licensing.
ii.     An applicant with a conviction of an offense that is not automatically disqualifying may be denied licensure if it is determined that the conduct of the applicant impacts upon the fitness and suitability of the applicant to provide child care.
iii.     The Department considers the following factors to determine the suitability of the caretaker to care for a child:
a)     Type of conviction
b)     Number of convictions
c)     The age of the individual at the time of the conviction
d)     The length of time that has elapsed since the last conviction
e)     The relationship between the crime and capacity to care for children
f)     Evidence of rehabilitation
g)     Current relationships with biological children or history of caring for children
c.     A child placing agency is only notified whether or not disqualifying information exists.
d.     Applicants may not be required to submit to this check if he/she has undergone a nationwide criminal record background check for the Department within the eighteen months prior to the date of application.  A letter from the state or local police who completed the nationwide check verifying the date and results of that check is acceptable.
4.     If no disqualifying information has been discovered, Department Licensing or child placing agency staff proceeds with the licensing process and places the results of the criminal record background check in the provider file.
5.     If disqualifying information has been discovered, Department Licensing or the child placing agency immediately notifies the applicant in writing of the denial of licensure (except if the applicant is a prospective kinship caregiver and Level 2 disqualifying information has been discovered.  Refer to Procedure: Appeal of Denial/Revocation of Licensure/Certification or Denial/Termination of Employment).
6.     In accordance with RIGL §14-2-34, background checks must be completed prior to any child placement.  No child will be placed into a prospective foster home pending licensure until the background check has been completed.
7.     The notification letter informs the applicant of the right to appeal in conformance with DOP: 100.0040, Complaints and Appeals and Criminal Record Background Checks - Addendum, Disqualifying Information.
 
C.     Criminal Record Background Checks- Prospective Facility Operators and Employees
1.     Statewide and nationwide criminal record background checks are completed on all prospective residential child care facility owners and operators, child placing facility owners and operators, child care center owners and operators, family child care home operators and owners/operators of community-based programs requiring Department licensing.
a.     A statewide criminal record background check is completed by designated Department Licensing staff.
i.     Results are documented on RI Criminal History System Clearance (Form #034) and included in the provider file.
ii.     As part of the re-licensing process, Licensing staff completes a statewide criminal record background check and ensures that Employment History Affidavit (Form #108), Criminal History Affidavit (Form #109) and written results are in the provider file for each owner and operator.
b.     For a nationwide criminal record background check, the applicant is instructed to apply to the Rhode Island Bureau of Criminal Identification.  All nationwide criminal record background checks include the taking of fingerprints.
i.     Any expense associated with the criminal record background check is paid by the applicant and/or requesting agency.
ii.     The applicant completes the Employment History Affidavit (Form #108) and Criminal History Affidavit (Form #109) for the provider file.
iii.     The applicant is provided with and brings to the Rhode Island Bureau of Criminal Identification the Fingerprint Affidavit (Form #109A). Form # 109A includes the Criminal Record Background Checks Addendum, Disqualifying Information.
c.     Results of the criminal record background check, identifying the nature of any disqualifying information, are sent to the Department.
i.     If there is no criminal history, Licensing staff proceeds with the licensing process and places the results of the criminal record background check in the provider file.
ii.     If the Department receives information regarding a history of non-disqualifying criminal information:
a)     Information must be reviewed by the supervisor and an administrator prior to proceeding with licensing.
b)     An applicant with a conviction of an offense that is not automatically disqualifying may be denied licensure if it is determined that the conduct of the applicant impacts upon the fitness and suitability of the applicant to provide child care.
c)     The department considers the following factors to make determination on the suitability of the caretaker to care for a child:
1)     Type of conviction
2)     Number of convictions
3)     The age of the individual at the time of the conviction
4)     The length of time that has elapsed since the last conviction
5)     The relationship between the crime and the capacity to care for children
6)     Evidence of rehabilitation
7)     Current relationships with biologic children or history for caring for children
iii.     If disqualifying information has been discovered, Licensing staff immediately notify the applicant of the denial of licensure.
iv.     The notification letter informs the applicant of the right to appeal, if applicable, in conformance with DOP: 100.0040, Complaints and Appeals and Criminal Record Background Checks Addendum, Disqualifying Information.
2.     Employees of residential child care facilities, child placing agencies, child care centers, community-based programs requiring Department licensing and of family child care homes:
a.     Family child care home assistants and individuals providing emergency coverage are subject to statewide and nationwide criminal record background checks. All nationwide criminal record background checks include the taking of finger prints.
i.     Family child care home operator ensures that the applicant completes Employment History Affidavit (Form #108) and Criminal History Affidavit (Form #109) and forwards to Department Licensing.
ii.     Licensing staff completes statewide criminal record background check for the applicant.  Results are documented on RI Criminal History System Clearance (Form #034) and included in the provider file.
iii.     Family child care home operator instructs the applicant to apply to the Bureau of Criminal Identification of the state police or the local police department for a nationwide criminal record background check.  The applicant is provided with, and brings to law enforcement agency, Fingerprint Affidavit (Form #109A), which includes the Criminal Record Background Checks - Addendum, Disqualifying Information and informs the law enforcement agency where to send results.
iv.     Results are sent to the Department, indicating that the applicant does or does not have disqualifying information.
a)     If there is no criminal history, Licensing staff informs the family child care home operator that the prospective employee is eligible for employment and places the results of the criminal record background check in the provider file.
b)     If the Department receives criminal history information that is not automatically disqualifying, this information must be reviewed by supervisor and administrator.  An applicant with a conviction of an offense that is not automatically disqualifying may be denied licensure if it is determined that the conduct of the applicant impacts upon the fitness and suitability of the applicant to provide child care.
c)     The Department considers the following factors to determine the suitability of the caretaker to care for a child:
1)     Type of conviction
2)     Number of convictions
3)     The age of the individual at the time of the conviction
4)     The length of time that has elapsed since the last conviction
5)     The relationship between the crime and the capacity to care for children
6)     Evidence of rehabilitation
7)     Current relationships with biological children or history of caring for children
d)     If disqualifying information has been discovered, Licensing staff informs the family child care home operator that the prospective employee is ineligible for employment.
e)     The applicant/employee is provided a copy of the notification and informed of his or her right to appeal if applicable in conformance with DOP: 100.0040, Complaints and Appeals and Criminal Record Background Checks Addendum, Disqualifying Information.
v.     As part of re-licensing, Licensing staff completes a statewide criminal record background check on family child care home assistants, individuals providing emergency coverage and adult household members.  Staff ensures that the Employment History Affidavit (Form #108), Criminal History Affidavit (Form #109) and written results of the criminal record background check are in the provider file for family child care home staff.
b.     Employees of residential child care facilities, child placing agencies, child care centers and community-based programs requiring Department licensing:
i.     Facility operator requires all persons who are offered employment, volunteers and consultants, in positions that involve supervisory or disciplinary power over a child or involve routine contact with a child without the presence of other employees, to undergo statewide and nationwide criminal record background checks.  All nationwide criminal record background checks include the taking of fingerprints.
ii.     The Operator ensures that the applicant completes the Employment History Affidavit (Form #108) and Criminal History Affidavit (Form #109).
iii.     The Operator instructs the applicant to apply to the Bureau of Criminal Identification of the state police or the local police department for a nationwide criminal record background check.  The applicant is provided with, and brings to law enforcement agency, the Fingerprint Affidavit (Form #109A), which includes the Criminal Record Background Checks - Addendum, Disqualifying Information and informs the law enforcement agency where to send the results.  Results of the check are sent to the employer, indicating that the applicant does or does not have disqualifying information.
iv.     If the facility administrator hires the employee prior to receiving the results of the check:
a)     Employment History Affidavit (Form #108), Criminal History Affidavit (Form #109) and results of the statewide criminal record background check, indicating no history of disqualifying information, must be completed and fingerprints taken prior to the applicant beginning the job assignment.
b)     Applicant ensures that prior to starting employment, the employer has received written verification that the nationwide criminal record background check has been initiated and this documentation is placed in the employee's personnel file.
c)     Until the results of the check are received by the employer, the employee, volunteer or consultant does not have supervisory or disciplinary power over or routine contact with child(ren) without the presence of others.
d)     Within ninety calendar days of hiring, notice is placed in the personnel file identifying the results of the criminal background check.  If notice is not received within ninety days, the applicant is relieved of child caring responsibilities.
v.     Upon receipt of notification that disqualifying information has been discovered, the facility administrator immediately notifies the applicant that his/her application is rejected or, if an individual is already employed, that employment will be terminated in ten working days.  The employee may not work with children for those ten working days.
a)     This letter informs the employee of his/her right to appeal in conformance with DOP:100.0040, Complaints and Appeals and Criminal Record Background Checks - Addendum, Disqualifying Information.
b)     A copy of this letter is provided to Department Licensing and to the Executive Office of Health and Human services (EOHHS) Hearing Officer in accordance with DOP: 100.0040, Complaints and Appeals.
c)     Any notifications by the Hearing Officer to the Licensing staff within the context of the appeal are shared with the facility administrator.
vi.     Employees, volunteers or consultants who do not have supervisory or disciplinary power over or routine contact with children without the presence of others need not undergo the criminal record background checks.
a)     The facility operator certifies in writing that the individual has no supervisory or disciplinary power over or routine contact with child(ren).
b)     A copy of this certification is provided to the Department's Licensing staff and filed in the employee's personnel file.
vii.     Facility operator's failure to require the criminal record background check or failure to maintain the written results of the check or the above referenced certification on file constitutes grounds to revoke the license of the operator.
viii.     As part of re-licensing, the facility operator is responsible to ensure that a statewide criminal record background check is completed for each full or part time employee, and volunteer or consultant who has supervisory or disciplinary power over or routine contact with child(ren) without the presence of others.  Department Licensing staff ensures that the provider file contains Employment History Affidavit (Forms #108), Criminal History Affidavit (Forms #109) and written results of the criminal record background check for these individuals.
ix.     Expungement of the results of the employee's criminal record background check must be consistent with the facility's policy on expunging the employee's personnel file after termination of employment.
c.     Prior nationwide criminal record background checks for employees:
i.     An applicant for employment is not required to submit to fingerprinting if he/she has submitted to the nationwide criminal record background check eighteen months prior to the date of application.
ii.     Employer may request, from the bureau of criminal identification of the state police or the local police department or the Attorney General's Office for employees of residential child care facilities, child placing agencies, child care centers or community-based programs requiring Department licensing, a letter indicating if any disqualifying information was discovered.
iii.     State or local police bureau of criminal identification or the Attorney General’s Office responds by stating if disqualifying information was discovered (without disclosing the nature of the information) or by stating that no disqualifying information was discovered.
iv.     The letter from the state or local police who completed the nationwide criminal record background check, which verifies the date and results of that check, is maintained on file.
 
D.     Criminal Record Background Checks – Employees of the Department
1.     All prospective employees of the Department are required to undergo statewide and nationwide criminal record background checks.  The nationwide criminal record background check includes the taking of fingerprints.
2.     All prospective Department volunteers, interns and consultants undergo a criminal record background check(s).
a.     A statewide criminal record background check is required for volunteers, interns and consultants when their positions will not involve supervisory or disciplinary power or routine contact with a child without the presence of other employees.
b.     Statewide and nationwide criminal record background checks are required for Department volunteers, interns and consultants when their positions involve supervisory or disciplinary power or routine contact with a child without the presence of other employees.
i.     The appropriate Department administrator determines whether a volunteer, intern or consultant will have supervisory or disciplinary power over or routine contact with child(ren) without the presence of other employees.
ii.     If the determination is made that a volunteer, intern or consultant will not have contact described in paragraph C1 and that a nationwide criminal background check is unnecessary, a letter certifying this is maintained on file by the Department administrator.
3.     For a statewide criminal record background check, a Department staff person completes or ensures the completion of the check relating to his/her work assignments.
a.     Designated Department staff have access to the Rhode Island Criminal History System.
b.     Department staff, requiring a statewide criminal record background check, who do not have access, submit the Rhode Island Criminal History System Clearance (Form #034) to designated staff authorized to access the System.
c.     The designated staff, who completes the statewide criminal record background check, documents results on the Form #034 and prints and attaches to Form #034 information relating to any suspected matches.
d.     The staff who requested the clearance reviews the results to ensure that the information relates to the intended person and includes a copy of the results in the personnel file.
e.     Department staff are prohibited from providing copies of this information to persons outside of the Department.  Staff refer subjects of a criminal record background check, who wish copies of clearance results, directly to the Department of the Attorney General.
4.     For a nationwide criminal record background check, the Department instructs applicants to apply to the Bureau of Criminal Identification of the Department of the Attorney General, state police or the local police department.
a.     The applicant is provided with, and brings to law enforcement agency, Fingerprint Affidavit (Form #109B).
b.     The Form 109B includes the Criminal Record Checks Addendum, Disqualifying Information and informs the law enforcement agency where to send results of the check.
5.     Upon receipt of the results of the criminal record background check, the Department may take action relative to the applicant’s employment:
a.     If there is no criminal history, the applicant and the Department are informed in writing.  Written documentation of results of the criminal record background check are maintained in the employee's personnel file.
b.     If the Department receives criminal history information that is not automatically disqualifying, this information must be reviewed by an appropriate supervisor and administrator.  An applicant with a conviction of an offense that is not automatically disqualifying may be denied employment if it is determined that the conduct of the applicant could endanger the health or welfare of a child and would be inconsistent with the purpose and intent of the Department.
c.     The Department considers the following factors to determine the suitability of the applicant for employment at the Department:
i.     Type of conviction
ii.     Number of convictions
iii.     The age of the applicant at the time of the conviction
iv.     The length of time that has elapsed since the last conviction
v.     Evidence of rehabilitation
d.     Upon the discovery of any disqualifying information with respect to an applicant, the Department informs the applicant of the disqualifying information.
i.     The notification letter informs the applicant of the right to appeal in conformance with DOP:100.0040, Complaints and Appeals and Criminal Record Background Checks - Addendum, Disqualifying Information.
6.     If the prospective employee, volunteer, intern or consultant has undergone a nationwide criminal records background check within the previous six months of application for employment, the Department may accept a letter from the Bureau of Criminal Identification verifying the date and results of the check.
 
E.     Appeals of Denial/Revocation of Licensure or Denial/Termination of Employment
1.     If an individual is disqualified for the conviction for any Level 1 Offense (refer to Criminal Record Background Checks Addendum, Disqualifying Information), that individual has a right to appeal the denial or revocation of a license or the denial or termination of employment to demonstrate that he or she has not been convicted for such an offense.
a.     Within thirty days of receipt of an adverse agency decision, the applicant/ employee must inform the Department of his or her intent to appeal by filing a Formal Request for an Appeal (Form #016) with the Executive Office of Health and Human Services.
i.     The applicant/employee must attach a copy of his/her disqualifying information report, which identifies the specific disqualifying offense(s).
ii.     The applicant/employee provides evidence that he or she has not been convicted of any Level 1 offense.
b.     The reviews the materials submitted on behalf of the applicant/employee and conducts the appeal process and provides a written decision in accordance with timeframes and procedures established in DOP:100.0040, Complaints and Appeals.
i.     If the applicant/employee is unable to present evidence that he or she has not been convicted of a Level 1 offense, the EOHHS Hearing Officer upholds the denial, termination or revocation and notifies the applicant, employer and Department Licensing, if applicable.
ii.     If the applicant/employee has presented evidence that he or she has not been convicted of a Level 1 offense, the EOHHS Hearing Officer overturns the rejection based on disqualifying information and notify the applicant, employee and Department Licensing, if applicable.
2.     If an individual is disqualified for the conviction for any Level 2 Offense (refer to Criminal Record Background Checks Addendum, Disqualifying Information), that individual has a right to appeal the denial or revocation of a license or the denial or termination of employment for the purpose of demonstrating his or her long standing record of excellence in child care or by demonstrating that he or she has been rehabilitated.
a.     When the Department is seeking to place a specific child with a kinship caregiver and Level 2 disqualifying information has been discovered, a divisional administrative review is completed by the appropriate Department administrator, pursuant to DOP: 100.0040, Complaints and Appeals, to determine if the applicant would be a fit and proper caregiver for the child and if there should be an override of the rejection based on disqualifying information.  In the event the override is denied, the applicant has the right to appeal as described in paragraphs B2 and B3, below.
b.     Except as described in paragraph B1, within thirty days of receipt of an adverse agency decision, an applicant/employee informs the Department of his or her intent to appeal by filing Formal Request for Hearing (Form #016).
i.     The applicant/employee must attach a copy of his/her disqualifying information report, which identifies the specific disqualifying offense(s).
ii.     The applicant/employee must provide written references attesting to the applicant’s long-standing record of excellence in child care. Such references must be from individuals who are qualified education or experience to testify to the abilities of the applicant/ employee. Such individuals include:
a)     Licensed child care providers
b)     Current or previous child care professionals
c)     Other professionals with credentials to effectively judge the applicant's qualifications in providing child care.
c.     The Department considers the following factors that may mitigate the Level 2 disqualifying information/offenses by a showing that the individual has successfully rehabilitated him or herself. Those factors include:
i.     Number of convictions
ii.     The age of the individual at the time of the conviction
iii.     The length of time that has elapsed since the last conviction
iv.     The relationship between the crime and the capacity to care for children
v.     Evidence of rehabilitation
vi.     Current relationships with biological children or history of caring for children
d.     The EOHHS Hearing Officer reviews the materials submitted on behalf of the applicant/employee, conducts the appeal process and provides a written decision in accordance with timeframes and procedures established in DOP 100.0040, Complaints and Appeals.
i.     If the applicant/employee has not demonstrated a record of excellence in child care sufficient to warrant disregard of the otherwise disqualifying information, the EOHHS Hearing Officer upholds the denial, termination or revocation and notifies the applicant, employer and Department Licensing, if applicable.
ii.     If the applicant/employee has demonstrated a record of excellence in child care, the EOHHS Hearing Officer may overturn the rejection based on disqualifying information and notify the applicant, employee and Licensing, if applicable.