Section 5-A133. SUITABILITY FOR EMPLOYMENT: CRIMINAL BACKGROUND CHECKS

 

133.1 Each Licensee shall comply with the requirements set forth in this Sections 133 and 135 related to criminal background checks for any individual:

 

(a) Who is employed by a Facility for compensation, including a contract employee or self-employed individual; or

 

(b) Whose activities involve the care or supervision of children at a Facility or unsupervised access to children who are cared for or supervised at a Facility.

 

133.2 For the purposes of this section, any individual residing in a Child Development Home or Expanded Home who is eighteen (18) years of age or older is considered to be a staff member.

 

133.3 A Licensee shall submit a request for criminal background checks of current and prospective staff members to OSSE:

 

(a) Prior to the date an individual becomes a staff member of the provider; and

 

(b) Not less than once during each three (3) year period for any currently employed staff member.

 

133.4 OSSE shall make a good faith effort to provide notification of the results of the criminal background reports to the Facility and the current or prospective staff member within forty-five (45) days of the date the Facility submitted the request the criminal background check.

 

133.5 Once a Licensee has submitted a request for a prospective staff member’s criminal background check, a prospective staff member may begin to work for the Facility if the prospective staff member is supervised at all times by an individual who, within the three (3) year period before the date of the Facility’s request, received a qualifying background check result.

 

133.6 A Licensee is not required to submit a request for criminal background check of a staff member if:

 

(a) The staff member received a background check that meets the requirements in Subsection 132.3(a):

 

(1) Within three (3) years of the first day of employment at the current Facility; and

 

(2) While employed by or seeking employment at another Facility (for the purposes of this Subsection, the “first Facility”) within the District;

 

(b) OSSE provided the first Facility a qualifying background check result, consistent with this chapter, for the staff member; and

 

(c) The staff member is employed by a Facility within the District, or has been separated from employment from the first Facility for a period of not more than one hundred and eighty (180) consecutive days before the date on which the staff member begins working at the current Facility.

 

133.7 Unless otherwise provided by law, prospective or current staff members shall provide a Facility and OSSE with all information necessary to enable the Facility and OSSE to promptly obtain the results of the criminal background checks including:

 

(a) A complete set of qualified, legible fingerprints in a format approved by the Federal Bureau of Investigations;

 

(b) Any additional identification that is required, including but not limited to the name, social security number, birth date, and gender of the applicant, employee, or volunteer; and

 

(c) A signed affirmation stating whether or not the staff member has been convicted of a crime, has pleaded nolo contendere, is on probation before judgment or placement of a case upon a stet docket, or has been found not guilty by reason of insanity, for any sexual offenses or intra-family offenses in the District of Columbia or their equivalent in any other state or territory, or for any of the following felony offenses or their equivalent in another state or territory:

 

(1) Murder, as described in Section 1111 of Title 18, United States Code;

 

(2) Child abuse or neglect;

 

(3) A crime against children, including child pornography;

 

(4) Spousal or domestic abuse;

 

(5) A crime involving rape or sexual assault;

 

(6) Kidnapping;

 

(7) Arson;

 

(8) Physical assault or battery; or

 

(9) A drug-related offense committed during the preceding five (5) years; or

 

(10) Has been convicted of a violent misdemeanor committed as an adult against a child, including the following crimes: child abuse, child endangerment, sexual assault, or of a misdemeanor involving child pornography.

 

133.8 OSSE shall review the results of the criminal background and child protection register checks to determine the suitability of the individual. 

 

133.9 A prospective or current staff member shall be ineligible for employment with a Facility, if such individual:

 

(a) Refuses to consent to the criminal background check described in Subsection 132.2(a);

 

(b) Knowingly makes a materially false statement in connection with such criminal background check;

 

(c) Is registered, or is required to be registered, on a State sex offender registry or repository or the National Sex Offender Registry;

 

(d) Is registered, or is required to be registered, on a State child protection registry or repository; or

 

(e) Has been convicted of any of the following felonies:

 

(1) Murder, as described in Section 1111 of Title 18, United States Code;

 

(2) Child abuse or neglect;

 

(3) A crime against children, including child pornography;

 

(4) Spousal abuse;

 

(5) A crime involving rape or sexual assault;

 

(6) Kidnapping;

 

(7) Arson;

 

(8) Physical assault or battery; or

 

(9) Subject to Subsection 133.10, a drug-related offense committed during the preceding five (5) years; or

 

(f) Has been convicted of a violent misdemeanor committed as an adult against a child, including the following crimes: child abuse, child endangerment, sexual assault, or of a misdemeanor involving child pornography.

 

133.10 A prospective or current staff member may be ineligible for employment with a Facility, if OSSE determines that such individual poses a present danger to children or youth or if an individual’s prior conviction for crimes impact the fitness of the individual to provide care for and have responsibility for the safety and welfare of children. In making this determination, the following factors shall be considered:

 

(a) The specific duties and responsibilities of the applicant;

 

(b) The impact or likelihood of an impact, if any, that the criminal offense for which the person was previously convicted will have on his or her fitness or ability to perform one or more of such duties or responsibilities;

 

(c) The length of time that has elapsed since the occurrence of the criminal offense;

 

(d) The age of the person at the time of the criminal offense;

 

(e) The frequency and seriousness of any criminal offense(s);

 

(f) Any information produced by the applicant, or produced on his or her behalf, regarding his or her rehabilitation and good conduct since the occurrence of the criminal offense; and

 

(g) Any applicable public policy encouraging employment of ex-offenders provided that:

 

(1) A Licensee shall not employ or permit to serve as a volunteer an applicant who has been convicted of, has pleaded nolo contendere to, is on probation before judgment, or placed on a case on the stet docket because of, or has been found not guilty by reason of insanity, for any sexual offenses including but not limited to those involving a minor, child abuse, or child neglect; and

 

(2) If an application for employment or volunteering is denied because there is evidence that the applicant presents a danger to children or youth, the Licensee shall inform the applicant in writing.

 

 

authority

Sections 3(b)(6A), 3(b)(9), 3(b)(9A), 3(b)(11) of the State Education Office Establishment Act of 2000, effective October 21, 2000 (D.C. Law 13-176; D.C. Official Code §§ 38-2602(b)(6A), (b)(9), (b)(9A), and (b)(11)) (2012 Repl. & 2016 Supp.)); the Day Care Policy Act of 1979, effective September 19, 1979 (D.C. Law 3-16; D.C. Official Code §§ 4-401 et seq. (2012 Repl. & 2016 Supp.)) (“Day Care Act”); Mayor’s Order 2009-3, dated January 15, 2009; the Child Development Facilities Regulation Act of 1998, effective April 13, 1999 (D.C. Law 12-215; D.C. Official Code §§ 7-2031 et seq. (2012 Repl.)) (“Facilities Act”); Mayor’s Order 2009-130, dated July 16, 2009; Sections 503 and 504 of the Early Intervention Program Establishment Act of 2004, effective April 13, 2005 (D.C. Law 15-353; D.C. Official Code §§ 7-863.03 and 7-863.04 (2012 Repl.)); Mayor’s Order 2009-167, dated September 28, 2009; Titles I and II of the Child and Youth, Safety and Health Omnibus Amendment Act of 2004 (“CYSHA”), effective April 13, 2005 (D.C. Law 15-353; D.C. Official Code §§ 1-620.31 et seq. and §§ 4-1501.01 et seq. (2012 Repl. & 2016 Supp.)); and the Healthy Tots Act of 2014, effective February 26, 2015 (D.C. Law 20-155; D.C. Official Code §§ 38-281 et seq. (2016 Supp.)); and pursuant to the Social Security Act, approved February 22, 2012 (Pub.L. 112-96; 42 U.S.C. § 618(c)); the Child Care and Development Block Grant Act of 2014 (“CCDBG Act”), approved November 19, 2014 (Pub.L. 113-186; 42 U.S.C. §§ 9858 et seq.), and regulations promulgated thereunder at 45 C.F.R. Parts 98 and 99.

source

Final Rulemaking at 63 DCR 14640 (December 2, 2016).