Effective 28 Aug 2019

210.1080. Background checks required — definitions — procedure — ineligible for employment, when — exemption, when — emergency rules. — 1. As used in this section, the following terms mean:

(1) "Child care staff member", a child care provider; persons employed by the child care provider for compensation, including contract employees or self-employed individuals; individuals or volunteers whose activities involve the care or supervision of children for a child care provider or unsupervised access to children who are cared for or supervised by a child care provider; or individuals residing in a family child care home who are seventeen years of age and older;

(2) "Criminal background check":

(a) A Federal Bureau of Investigation fingerprint check;

(b) A search of the National Crime Information Center's National Sex Offender Registry; and

(c) A search of the following registries, repositories, or databases in Missouri, the state where the child care staff member resides, and each state where such staff member resided during the preceding five years:

a. The state criminal registry or repository, with the use of fingerprints being required in the state where the staff member resides and optional in other states;

b. The state sex offender registry or repository; and

c. The state-based child abuse and neglect registry and database.

2. (1) Prior to the employment or presence of a child care staff member in a family child care home, group child care home, child care center, or license-exempt child care facility, the child care provider shall request the results of a criminal background check for such child care staff member from the department of health and senior services.

(2) A prospective child care staff member may begin work for a child care provider after the criminal background check has been requested from the department; however, pending completion of the criminal background check, the prospective child care staff member shall be supervised at all times by another child care staff member who received a qualifying result on the criminal background check within the past five years.

(3) A family child care home, group child care home, child care center, or license-exempt child care facility that has child care staff members at the time this section becomes effective* shall request the results of a criminal background check for all child care staff members by January 31, 2019, unless the requirements of subsection 5 of this section are met by the child care provider and proof is submitted to the department of health and senior services by January 31, 2019.

3. The costs of the criminal background check shall be the responsibility of the child care staff member but may be paid or reimbursed by the child care provider at the provider's discretion. The fees charged for the criminal background check shall not exceed the actual cost of processing and administration.

4. Except as otherwise provided in subsection 2 of this section, upon completion of the criminal background check, any child care staff member or prospective child care staff member shall be ineligible for employment or presence at a family child care home, a group child care home, a licensed child care center, or a license-exempt child care facility if such person:

(1) Refuses to consent to the criminal background check as required by this section;

(2) Knowingly makes a materially false statement in connection with the criminal background check as required by this section;

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

(4) Has a finding of child abuse or neglect under section 210.145 or 210.152 or any other finding of child abuse or neglect based on any other state's registry or database;

(5) Has been convicted of a felony consisting of:

(a) Murder, as described in 18 U.S.C. Section 1111;

(b) Child abuse or neglect;

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

(d) Spousal abuse;

(e) A crime involving rape or sexual assault;

(f) Kidnapping;

(g) Arson;

(h) Physical assault or battery; or

(i) Subject to subsection 5 of this section, a drug-related offense committed during the preceding five years;

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

(7) Has been convicted of any similar crime in any federal, state, municipal, or other court.

­­Adult household members seventeen years of age and older in a family child care home shall be ineligible to maintain a presence at a family child care home if any one or more of the provisions of this subsection applies to them.

5. A child care provider shall not be required to submit a request for a criminal background check under this section for a child care staff member if:

(1) The staff member received a criminal background check within five years before the latest date on which such a submission may be made and while employed by or seeking employment by another child care provider within Missouri;

(2) The department of health and senior services provided to the first provider a qualifying criminal background check result, consistent with this section, for the staff member; and

(3) The staff member is employed by a child care provider within Missouri or has been separated from employment from a child care provider within Missouri for a period of not more than one hundred eighty consecutive days.

6. (1) The department of health and senior services shall process the request for a criminal background check for any prospective child care staff member or child care staff member as expeditiously as possible, but not to exceed forty-five days after the date on which the provider submitted the request.

(2) The department shall provide the results of the criminal background check to the child care provider in a statement that indicates whether the prospective child care staff member or child care staff member is eligible or ineligible for employment or presence at the child care facility. The department shall not reveal to the child care provider any disqualifying crime or other related information regarding the prospective child care staff member or child care staff member.

(3) If such prospective child care staff member or child care staff member is ineligible for employment or presence at the child care facility, the department shall, when providing the results of criminal background check, include information related to each disqualifying crime or other related information, in a report to such prospective child care staff member or child care staff member, along with information regarding the opportunity to appeal under subsection 7 of this section.

7. The prospective child care staff member or child care staff member may appeal in writing to the department to challenge the accuracy or completeness of the information contained in his or her criminal background check, or to offer information mitigating the results and explaining why an eligibility exception should be granted. The department of health and senior services shall attempt to verify the accuracy of the information challenged by the individual, including making an effort to locate any missing disposition information related to the disqualifying crime. The appeal shall be filed within ten days from the delivery or mailing of the notice of ineligibility. The department shall make a decision on the appeal in a timely manner.

8. The department may adopt emergency rules to implement the requirements of this section. Any rule or portion of a rule, as that term is defined in section 536.010, that is created under the authority delegated in this section shall become effective only if it complies with and is subject to all of the provisions of chapter 536 and, if applicable, section 536.028. This section and chapter 536 are nonseverable, and if any of the powers vested with the general assembly pursuant to chapter 536 to review, to delay the effective date, or to disapprove and annul a rule are subsequently held unconstitutional, then the grant of rulemaking authority and any rule proposed or adopted after August 28, 2018, shall be invalid and void.

9. (1) The provisions of this section shall not apply to any child care facility, as defined in section 210.201, maintained or operated under the exclusive control of a religious organization, as described in subdivision (4) of subsection 1 of section 210.211, unless such facility is a recipient of federal funds for providing care for children, except for federal funds for those programs that meet the requirements for participation in the Child and Adult Care Food Program under 42 U.S.C. Section 1766.

**(2) The provisions of this section, and any rules or regulations promulgated under this section, shall expire if 42 U.S.C. Section 9858f, as enacted by the Child Care and Development Block Grant (CCDBG) Act of 2014, and 45 CFR 98.43 are repealed or if Missouri no longer receives federal funds from the CCDBG.

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(L. 2018 H.B. 1350, A.L. 2019 H.B. 397)

*This section first became effective August 28, 2018, H.B. 1350, 2018.

**Contingent expiration date.