PUBLIC SAFETY AND WELFARE
CHILD DAY CARE, RESIDENTIAL CARE, AND CHILD-PLACING AGENCIES
Residential Care and Child-Placing Agency Licensing
170-E:29-a State Registry and Criminal Records Check for Child Care Institutions and Child Care Agencies.
I. Child care institutions and child care agencies, with the exception of foster family homes, that are required to be licensed according to the provisions of this chapter shall submit to the department the names, birth names, aliases, birth dates, and resident addresses during the previous 5 years of all owners, household members, and program directors prior to the issuance of a permit or license and prior to making a final offer of employment, for all individuals as required by the department in rules adopted under RSA 541-A.
I-a. The persons described in paragraph I shall complete a Federal Bureau of Investigation fingerprint check using the biometric identification system through a qualified law enforcement agency or an authorized employee of the division of state police, department of safety and authorize the release of the person's criminal records, if any, to the department. In the event that the first set of fingerprints is invalid due to insufficient pattern, a second set of fingerprints shall be necessary to complete the criminal history records check. If, after 2 attempts, a set of fingerprints is invalid due to insufficient pattern, the department may, in lieu of the criminal history records check, accept police clearances from every city, town, or county where the person has lived during the past 5 years.
II. (a) For every name submitted on an application and for each person for whom information is required to be submitted pursuant to paragraph I, the department shall search for such persons against the New Hampshire sex offender and abuse and neglect registries, and the sex offender and abuse and neglect registries of each state where the individual resided in the past 5 years. The individual shall submit all forms and any required payments to the department to request from each state a check of the abuse and neglect registry records where the individual resided in the past 5 years.
(b) Under the authority of the Child Care and Development Block Grant Act of 2014, the division of state police shall conduct the criminal history records check pursuant to paragraph I-a, through its records and through the Federal Bureau of Investigation, to include a check of the National Sex Offender Registry file in the National Crime Information Center records. Upon completion of the background investigation, the division of state police shall release copies of the criminal conviction records to the department and shall indicate whether the individual is registered on the National Sex Offender Registry file in the National Crime Information Center records. The department shall maintain the confidentiality of all criminal history records information received.
(c) The costs of criminal history record and abuse and neglect registry checks shall be borne by the licensee; provided, that the licensee may require an applicant to pay the actual costs of the criminal history check and abuse and neglect registry checks of the employee.
(d) Any individual who refuses to consent to the criminal background check or knowingly makes a materially false statement in connection with such criminal background checks shall be ineligible for employment.
III. Notwithstanding paragraph I, a licensee may make a final offer of employment and allow a person to begin working in the program while the results of the state and national criminal background check is pending provided that, prior to beginning employment, the applicant completes a statement stating that he or she:
(a) Does not have any felony conviction in this or any other state.
(b) Has not been convicted of a sexual assault, assault including simple assault, any other violent crime, abuse, neglect, or any other crime that shows that they may pose a threat to well-being of children, such as a violent crime or a sexually-related crime against an adult.
(c) Has not had a finding by the department or any administrative agency in this or any other state for abuse, neglect, or exploitation of children.
IV. The results of the criminal background check shall be valid for 5 years. Prior to the expiration of that 5-year period, the individuals described in paragraph I shall undergo a background check pursuant to this section.
IV-a. If a person who is or has been employed or volunteered at a child care institution or child care agency is offered employment or volunteers at another child care institution or child care agency or a child day care agency, the person shall not be required to undergo the criminal records check described in paragraph I-a if the previous criminal records check was completed within the last 5 years as provided in paragraph IV, and the person was determined by the department to be eligible for employment. Before entering employment or volunteering with the new agency, the person shall complete a statement as set forth in paragraph III.
V. The department shall make a determination regarding the individual's eligibility for employment no later than 45 days from submission of all required information as described in paragraphs I and I-a. If any person whose name has been submitted for a check under this section is registered or required to be registered on a state sex offender registry or repository, or the National Sex Offender Registry, or has been convicted of a felony consisting of murder, child abuse or neglect, an offense involving child sexual abuse images, trafficking, spousal abuse, a crime involving rape or sexual assault, kidnapping, arson, physical assault or battery, or a drug-related offense committed during the previous 5 years, or any other violent or sexually related misdemeanor or against a child, including child abuse, child endangerment, sexual assault, or a misdemeanor involving child sexual abuse images, or of a crime which shows that the person might be reasonably expected to pose a threat to a child, such as a violent crime or a sexually-related crime against an adult, the department shall:
(a) If the person is the applicant or owner, revoke or deny the license.
(b) If the person is a board member, household member, or child care institution or child care agency personnel, or any other person having regular contact with the enrolled children inform the child care institution or child care agency that the person is ineligible for employment and give the program an opportunity to take immediate corrective action to remove the person from the program, and, in conjunction with the department, to develop a corrective action plan, approved by the department, which shall ensure that the person will not be on the premises of the child care institution or child care agency and shall have no contact with children enrolled in the child care institution or child care agency.
(c) Suspend, deny, or revoke the license or permit if the child care institution or child care agency refuses to take corrective action as indicated in subparagraph (b), or subsequently fails to comply with the corrective action plan approved by the department.
VI. If any person whose name has been submitted for this check has been convicted of a felony offense or violent crime deemed directly or indirectly harmful to children in child residential care, crimes against minors or adults, except crimes as provided in paragraph V, or is the subject of a founded complaint of child abuse or neglect, the department may deny, revoke, or suspend a license or permit pending the development and implementation of a corrective action plan approved by the department. The department shall conduct an investigation in accordance with rules adopted under this subdivision to determine whether the person is ineligible for employment. The investigation shall include an opportunity for the person to present evidence on his or her behalf to show that the person does not pose a threat to the safety of children.
VII. (a) Once the department has made a determination that the individual required to complete a criminal record check under paragraph I-a is eligible for employment, the department shall issue a residential child care employment eligibility card, which shall be valid for 5 years provided that no disqualifying convictions are subsequently submitted, and the individual remains eligible as described in paragraph V. The department may require additional background checks to be completed based upon reliable information that the individual received one or more additional convictions subsequent to the previous criminal record submission. If the department receives confirmation from a law enforcement agency that an individual has been charged with a crime as described in paragraph III or V, the department shall suspend the individuals residential child care eligibility card and inform the agency that the individual is ineligible for employment and give the agency an opportunity to take immediate corrective action to remove the individual from the agency, and, in conjunction with the department, to develop a corrective action plan, approved by the department, which shall ensure that the individual will not be on the premises of the program and shall have no contact with children enrolled in the program while charges are pending.
(b) The fee for a residential child care employment eligibility card shall be $50, and the card shall be valid for 5 years from the date of issuance, or a prorated amount of $10 per year from the most recently completed criminal background check. The fee for a replacement card shall be $15.
VIII. The commissioner shall adopt rules, pursuant to RSA 541-A, relative to the confidentiality of information collected under this section and to the release, if any, of such information.
Source. 2013, 216:2, eff. Sept. 8, 2013. 2016, 158:6, eff. Oct. 1, 2016. 2017, 91:4, eff. Aug. 6, 2017. 2018, 318:11, eff. Aug. 24, 2018. 2019, 313:2, eff. July 1, 2019.