Effective 06 Jun 2019, see footnote

43.539. Criminal record review, youth agencies and care of children, elderly, or disabled persons — definitions — Rap Back program, requirements, fingerprints — information to be provided by applicant — confidentiality — notification and forms provided by patrol. — 1. As used in this section, the following terms mean:

(1) "Applicant", a person who:

(a) Is actively employed by or seeks employment with a qualified entity;

(b) Is actively licensed or seeks licensure with a qualified entity;

(c) Actively volunteers or seeks to volunteer with a qualified entity;

(d) Is actively contracted with or seeks to contract with a qualified entity; or

(e) Owns or operates a qualified entity;

(2) "Care", the provision of care, treatment, education, training, instruction, supervision, or recreation to children, the elderly, or disabled persons;

(3) "Missouri criminal record review", a review of criminal history records and sex offender registration records under sections 589.400 to 589.425 maintained by the Missouri state highway patrol in the Missouri criminal records repository;

(4) "Missouri Rap Back program", any type of automatic notification made by the Missouri state highway patrol to a qualified entity indicating that an applicant who is employed, licensed, or otherwise under the purview of that entity has been arrested for a reported criminal offense in Missouri as required under section 43.506;

(5) "National criminal record review", a review of the criminal history records maintained by the Federal Bureau of Investigation;

(6) "National Rap Back program", any type of automatic notification made by the Federal Bureau of Investigation through the Missouri state highway patrol to a qualified entity indicating that an applicant who is employed, licensed, or otherwise under the purview of that entity has been arrested for a reported criminal offense outside the state of Missouri and the fingerprints for that arrest were forwarded to the Federal Bureau of Investigation by the arresting agency;

(7) "Patient or resident", a person who by reason of age, illness, disease, or physical or mental infirmity receives or requires care or services furnished by an applicant, as defined in this section, or who resides or boards in, or is otherwise kept, cared for, treated, or accommodated in a facility as defined in section 198.006, for a period exceeding twenty-four consecutive hours;

(8) "Qualified entity", a person, business, or organization that provides care, care placement, or educational services for children, the elderly, or persons with disabilities as patients or residents, including a business or organization that licenses or certifies others to provide care or care placement services;

(9) "Youth services agency", any agency, school, or association that provides programs, care, or treatment for or exercises supervision over minors.

2. The central repository shall have the authority to submit applicant fingerprints to the National Rap Back program to be retained for the purpose of being searched against future submissions to the National Rap Back program, including latent fingerprint searches. Qualified entities may conduct Missouri and national criminal record reviews on applicants and participate in Missouri and National Rap Back programs for the purpose of determining suitability or fitness for a permit, license, or employment, and shall abide by the following requirements:

(1) The qualified entity shall register with the Missouri state highway patrol prior to submitting a request for screening under this section. As part of the registration, the qualified entity shall indicate if it chooses to enroll applicants in the Missouri and National Rap Back programs;

(2) Qualified entities shall notify applicants subject to a criminal record review under this section that the applicant's fingerprints shall be retained by the state central repository and the Federal Bureau of Investigation and shall be searched against other fingerprints on file, including latent fingerprints;

(3) Qualified entities shall notify applicants subject to enrollment in the National Rap Back program that the applicant's fingerprints, while retained, may continue to be compared against other fingerprints submitted or retained by the Federal Bureau of Investigation, including latent fingerprints;

(4) The criminal record review and Rap Back process described in this section shall be voluntary and conform to the requirements established in the National Child Protection Act of 1993, as amended, and other applicable state or federal law. As a part of the registration, the qualified entity shall agree to comply with state and federal law and shall indicate so by signing an agreement approved by the Missouri state highway patrol. The Missouri state highway patrol may periodically audit qualified entities to ensure compliance with federal law and this section;

(5) A qualified entity shall submit to the Missouri state highway patrol a request for screening on applicants covered under this section using a completed fingerprint card;

(6) Each request shall be accompanied by a reasonable fee, as provided in section 43.530, plus the amount required, if any, by the Federal Bureau of Investigation for the national criminal record review and enrollment in the National Rap Back program in compliance with the National Child Protection Act of 1993, as amended, and other applicable state or federal laws;

(7) The Missouri state highway patrol shall provide, directly to the qualified entity, the applicant's state criminal history records that are not exempt from disclosure under chapter 610 or otherwise confidential under law;

(8) The national criminal history data shall be available to qualified entities to use only for the purpose of screening applicants as described under this section. The Missouri state highway patrol shall provide the applicant's national criminal history record information directly to the qualified entity;

(9) The determination whether the criminal history record shows that the applicant has been convicted of or has a pending charge for any crime that bears upon the fitness of the applicant to have responsibility for the safety and well-being of children, the elderly, or disabled persons shall be made solely by the qualified entity. This section shall not require the Missouri state highway patrol to make such a determination on behalf of any qualified entity;

(10) The qualified entity shall notify the applicant, in writing, of his or her right to obtain a copy of any criminal record review, including the criminal history records, if any, contained in the report and of the applicant's right to challenge the accuracy and completeness of any information contained in any such report and obtain a determination as to the validity of such challenge before a final determination regarding the applicant is made by the qualified entity reviewing the criminal history information. A qualified entity that is required by law to apply screening criteria, including any right to contest or request an exemption from disqualification, shall apply such screening criteria to the state and national criminal history record information received from the Missouri state highway patrol for those applicants subject to the required screening; and

(11) Failure to obtain the information authorized under this section, with respect to an applicant, shall not be used as evidence in any negligence action against a qualified entity. The state, any political subdivision of the state, or any agency, officer, or employee of the state or a political subdivision shall not be liable for damages for providing the information requested under this section.

3. The criminal record review shall include the submission of fingerprints to the Missouri state highway patrol, who shall conduct a Missouri criminal record review, including closed record information under section 610.120. The Missouri state highway patrol shall also forward a copy of the applicant's fingerprints to the Federal Bureau of Investigation for a national criminal record review.

4. The applicant subject to a criminal record review shall provide the following information to the qualified entity:

(1) Consent to obtain the applicant's fingerprints, conduct the criminal record review, and participate in the Missouri and National Rap Back programs;

(2) Consent to obtain the identifying information required to conduct the criminal record review, which may include, but not be limited to:

(a) Name;

(b) Date of birth;

(c) Height;

(d) Weight;

(e) Eye color;

(f) Hair color;

(g) Gender;

(h) Race;

(i) Place of birth;

(j) Social Security number; and

(k) The applicant's photo.

5. Any information received by an authorized state agency or a qualified entity under the provisions of this section shall be used solely for internal purposes in determining the suitability of an applicant. The dissemination of criminal history information from the Federal Bureau of Investigation beyond the authorized state agency or related governmental entity is prohibited. All criminal record check information shall be confidential, and any person who discloses the information beyond the scope allowed is guilty of a class A misdemeanor.

6. A qualified entity enrolled in either the Missouri or National Rap Back program shall be notified by the Missouri state highway patrol that a new arrest has been reported on an applicant who is employed, licensed, or otherwise under the purview of the qualified entity. Upon receiving the Rap Back notification, if the qualified entity deems that the applicant is still serving in an active capacity, the entity may request and receive the individual's updated criminal history record. This process shall only occur if:

(1) The entity has abided by all procedures and rules promulgated by the Missouri state highway patrol and Federal Bureau of Investigation regarding the Missouri and National Rap Back programs;

(2) The individual upon whom the Rap Back notification is being made has previously had a Missouri and national criminal record review completed for the qualified entity under this section within the previous six years; and

(3) The individual upon whom the Rap Back notification is being made is a current employee, licensee, or otherwise still actively under the purview of the qualified entity.

7. The Missouri state highway patrol shall make available or approve the necessary forms, procedures, and agreements necessary to implement the provisions of this section.

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(L. 2019 H.B. 694)

Effective 6-06-19