The Massachusetts Board of Elementary and Secondary Education
Background Checks for School Employees: Progress Report and Adoption of Regulations, 603 CMR 51.00
At the September 24, 2013 meeting, the Board of Elementary and Secondary Education voted to adopt, on an emergency basis, the regulations, 603 CMR 51.00: Criminal History Checks for School Employees. Emergency regulations are in effect for three months. Since September 24, the Department of Elementary and Secondary Education has solicited, received, and reviewed public comment on the regulations. Based on public comment and additional review, we have made some further refinements to the regulations that you adopted in September. I am proposing that the Board take a final vote to adopt the regulations, as amended, 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 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. Massachusetts schools and school districts which operate elementary and/or secondary schools for students in Pre-K-12 will receive and review the results of the FBI criminal records checks for their employees.
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. 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. EOPSS and MorphoTrust anticipate a "soft launch" of the process with a few volunteer districts within the next four to six weeks. The process will be expanded to all schools and districts later in the winter.
Public Comment
The Department received comments from only two organizations, the Massachusetts Teachers Association (MTA) and the Boston Public Schools (BPS). Both sets of comments are attached to this memo, along with the Department's response to the substantive suggestions for change that the MTA made in its comments. We adopted several of the MTA suggestions. BPS presented a series of questions rather than suggesting changes to the regulations. We discussed these questions with BPS and provided the information to them.
Revisions to the September 2013 Emergency Regulations
The revisions make the regulations clearer and provide additional notice to school employees who are subject to the background checks. Substantive changes include:
- giving school employers authority to conduct national criminal background checks on individuals working with students in schools under a contract or lease with the school or district (603 CMR 51.02, definition of "Subcontractor or Laborer");
- requiring a school employer to make a copy of the national criminal background report available to the individual upon the individual's request (603 CMR 51.04(4));
- applying the same procedural requirements for conducting background checks on individuals who were initially hired on a conditional basis pending results of the national criminal background check (603 CMR 51.05(4)(b)); and
- requiring a school employer to notify an individual if the school employer is making a report to the Commissioner of Elementary and Secondary Education regarding information contained in the individual's national criminal background check (603 CMR 71.07 (1) and (2)).
Attached is a clean copy of the final proposed regulations, as well as a copy with changes tracked, showing the revisions to the emergency regulations as adopted in September.
I recommend that the Board vote to adopt the regulations in final form this month. If you have any questions on the 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 December 17 Board meeting to respond to your questions.
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