Rule-Making Standards and Procedures s11

Title of Proposed Rule: / Pending Criminal Background Check Clearance Protection
Rule-making#: / 13-4-17-1
Office/Division or Program: Office of Early Childhood/Division of Early Learning and Care / Rule Author: David A. Collins / Phone: 303-866-5946
E-Mail:

STATEMENT OF BASIS AND PURPOSE

Summary of the basis and purpose for the rule or rule change. (State what the rule says or does, explain why the rule or rule change is necessary and what the program hopes to accomplish through this rule.)

Pursuant to state law and regulation, newly hired employees of a licensed child care facility must undergo a criminal background check investigation that pulls information from the Federal Bureau of Investigation, the Colorado Bureau of Investigation, the ICON system, the TRAILS child abuse and neglect system, and the Colorado sex offender registry. However, it is common practice that newly hired employees of a licensed child care facility are able to start working at a facility before the report back on the criminal background check is completed. As of April 2014, a criminal background check clearance takes four to five months to complete. As a result, children may be exposed to child care facility employees that could ultimately be barred from employment due to their criminal record.

To protect children from any adult working in a child care facility whose criminal background check is not yet completed, this rule package proposes to require licensed child care facilities to never leave a newly hired employee whose criminal background check is not yet completed alone with children. The rule will require that newly hired employees whose criminal background check has not yet been completed to always work in the presence of an adult, whose criminal background checks have been completed, when children are present.

An emergency rule-making (which waives the initial Administrative Procedure Act noticing requirements) is necessary:

to comply with state/federal law and/or
X / to preserve public health, safety and welfare

Explain: This rule change is being proposed for emergency adoption. The delay in completing criminal background checks for employees of licensed child care facilities poses a potential risk to the health, safety, and welfare of children.

Initial Review / 05/03/2013 / Final Adoption / 06/07/2013
Proposed Effective Date / 05/03/2013 / EMERGENCY Adoption / 05/03/2013

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[Note: “Strikethrough” indicates deletion from existing rules and “all caps” indicates addition of new rules.]

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STATEMENT OF BASIS AND PURPOSE (continued)

Authority for Rule:

State Board Authority: 26-1-107, C.R.S. (2012) - State Board to promulgate rules; 26-1-109, C.R.S. (2012) - State Board rules to coordinate with federal programs; 26-1-111, C.R.S. (2012) - State Board to promulgate rules for public assistance and welfare activities.

Program Authority: (give federal and/or state citations and a summary of the language authorizing the rule-making)

26-6-107, C.R.S. - licensure of child care centers and state board authority to promulgate rules

Yes / X / No
Yes / X / No

Does the rule incorporate material by reference?

Does this rule repeat language found in statute?

If yes, please explain.

The program has sent this proposed rule-making package to which stakeholders?

A notice of the rule-making and a link to the package on the Division of Early Care and Learning website along with an accompanying link to an electronic comment website has been sent to the following stakeholders:

All licensed child care centers, preschools, family child care homes, day camps, day treatment centers, and summer camps, as well as the Colorado Family Child Care Association, the Early Care and Education Association of Colorado, the Early Childhood Councils, the Resource and Referral network of Colorado, and the Earl Childhood Leadership Commission.

Attachments:

Regulatory Analysis

Overview of Proposed Rule

Stakeholder Comment Summary

Rule-making Form SBA-3a (08/09)

REGULATORY ANALYSIS

(complete each question; answers may take more than the space provided)

1. List of groups impacted by this rule:

Which groups of persons will benefit, bear the burdens or be adversely impacted by this rule?

All licensed child care centers, preschools, family child care homes, day camps, day treatment centers, and summer camps.

2. Describe the qualitative and quantitative impact:

How will this rule-making impact those groups listed above? How many people will be impacted? What are the short-term and long-term consequences of this rule?

The qualitative impact will be to assure that children in the care of a licensed child care facility are not cared for by an adult whose criminal background checks are not complete unless there is another adult whose criminal background checks are complete is present in the room. This will help ensure the safety of children.

3. Fiscal Impact:

For each of the categories listed below explain the distribution of dollars; please identify the costs, revenues, matches or any changes in the distribution of funds even if such change has a total zero effect for any entity that falls within the category. If this rule-making requires one of the categories listed below to devote resources without receiving additional funding, please explain why the rule-making is required and what consultation has occurred with those who will need to devote resources.

State Fiscal Impact (Identify all state agencies with a fiscal impact, including any Colorado Benefits Management System (CBMS) change request costs required to implement this rule change)

None

County Fiscal Impact

None

Federal Fiscal Impact

None

Other Fiscal Impact (such as providers, local governments, etc.)

Providers may realize a fiscal impact associated with this rule-making if they otherwise would have placed a new employee whose criminal background checks are not yet complete alone in a room to supervise children, or with another employee who also has not completed his/her criminal background check. The makeup and composition of the average classroom in a child care setting rarely includes just one adult; therefore, the impact to providers should be minimal.

Rule-making Form SBA-3b (10/08)

REGULATORY ANALYSIS (continued)

4. Data Description:

List and explain any data, such as studies, federal announcements, or questionnaires, which were relied upon when developing this rule?

The Department conducted its own evaluation of the current delays in the completion of criminal background checks and this evaluation has been confirmed via feedback from licensed child care providers.

5. Alternatives to this Rule-making:

Describe any alternatives that were seriously considered. Are there any less costly or less intrusive ways to accomplish the purpose(s) of this rule? Explain why the program chose this rule-making rather than taking no action or using another alternative.

No alternative exists at this time.

Rule-making Form SBA-3b (10/08)

OVERVIEW OF PROPOSED RULE

Compare and/or contrast the content of the current regulation and the proposed change.

Section Numbers / Current Regulation / Proposed Change /

Stakeholder Comment

7.701.33 / Criminal records check / Add “J” to require that any employee with a pending criminal background check never be left alone with children. / __ / Yes / X / No

Rule-making Form SBA-3c (10/08)

STAKEHOLDER COMMENT SUMMARY

DEVELOPMENT

The following individuals and/or entities were included in the development of these proposed rules (such as other Program Areas, Legislative Liaison, and Sub-PAC):

None

THIS RULE-MAKING PACKAGE

The following individuals and/or entities were contacted and informed that this rule-making was proposed for consideration by the State Board of Human Services:

Are other State Agencies (such as Colorado Department of Health Care Policy and Financing) impacted by these rules? If so, have they been contacted and provided input on the proposed rules?

Yes / X / No

Have these rules been reviewed by the appropriate Sub-PAC Committee?

Yes / X / No

Date presented ______. Were there any issues raised? ____ Yes ____ No

If not, why.

This is an emergency package and it will be brought to the Child Welfare Sub-PAC in May 2013.

Comments were received from stakeholders on the proposed rules:

Yes / X / No

If “yes” to any of the above questions, summarize and/or attach the feedback received by specifying the section and including the Department/Office/Division response. Provide proof of agreement or ongoing issues with a letter or public testimony by the stakeholder.

Rule-making Form SBA-3d (12/11)

(12 CCR 2509-8)

7.701.33 Criminal Record Check [Rev. eff. 6/1/12]

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I. Portability of Fingerprint-Based Criminal Background Checks

1. Where two or more individually licensed facilities are wholly owned, operated, and controlled by a common ownership group or school district, a fingerprint-based criminal history records check completed for one of the licensed facilities of the common ownership group or school district pursuant to this section for whom a criminal records check is required under Section 26-6-107, C.R.S., may satisfy the records check requirement for any other licensed facility under the same common ownership group or school district. A new fingerprint-based criminal history records check shall not be required of such an individual if the common ownership group or school district maintains a central records management system for employees of all its licensed facilities; takes action as required pursuant to Section 26-6-104, C.R.S., when informed of the results of a fingerprint-based criminal history records check that requires action pursuant to Section 26-6-107, C.R.S.; and informs the Department whenever an additional licensed facility comes under or is no longer under its ownership or control.

2. When a licensee is inspected pursuant to the Child Care Licensing Act and records regarding CBI and FBI fingerprint-based criminal background checks, as well as records and reports of child abuse and neglect maintained by the State Department, and the comparison search on the ICON system at the State Judicial system are held at a central records management system, the licensee shall be afforded fourteen (14) calendar days to provide to the State Department documentation necessary to verify that employees at the licensed facility have the required records related to fingerprint-based criminal background checks.

J. Employees with Pending Criminal Background Checks

Employees of licensed child care centers, pre-schools, family child care homes, and day treatment centers whose criminal background checks are pending and not yet complete shall:

1. Never be left alone in the presence of children; and,

2. Shall always be in the presence of and accompanied by an adult employee of the licensee whose criminal background checks have been completed.

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Rule-making Form SBA-4 (6/02)