H. B. 2385
(By Delegates Douglas, Manuel and Compton)
[Introduced February 7, 1995; referred to the
Committee on the Judiciary then Finance.]
A BILL to amend article two-b, chapter forty-nine of the code of
West Virginia, one thousand nine hundred thirty-one, as
amended, by adding thereto a new section, designated section
eight-a, relating to establishing a criminal record check
system for screening child care workers; restricting the
scope of the criminal record check; confidentiality
provision related to handling criminal records; protection
against civil liability for wrongful discharge; the
procedure for requesting criminal record checks; information
to be considered by commissioner in determining to whom to direct criminal record checks; and providing a criminal
penalty.
Be it enacted by the Legislature of West Virginia:
That article two-b, chapter forty-nine of the code of West
Virginia, one thousand nine hundred thirty-one, as amended, be
amended by adding thereto a new section, designated section
eight-a, to read as follows:
ARTICLE 2B. DUTIES OF COMMISSIONER OF HUMAN SERVICES FOR CHILD
WELFARE.
§49-2B-8a. Duty to perform criminal record check of prospective
employees, volunteers or associates; restricted
scope of criminal record check; confidentiality;
duty to destroy or return records; procedure used
to request criminal record checks; protection
from civil liability; considerations for criminal
record check; criminal penalty.
(a) It is required of any day-care center, facility, family
day-care provider, foster family group home, foster family home,
group home or group home facility, as such terms are defined by
section two of this article, or other child care shelter,
institution or facility or juvenile detention facility operating in this state, that prior to considering any person who shall
apply for employment or who shall seek to volunteer his or her
services therewith in a position wherein such person would have
access to or come in contact with, children, which such day-care
center, facility, family day-care provider, foster family group
home, foster family home, group home, group home facility or
other child care shelter, institution or facility or juvenile
detention facility serves, such person shall be required to
submit to a criminal record check by signing a release, the form
for which shall be provided by the commissioner, authorizing any
police or governmental agency, department or office maintaining
criminal records, to release any such records. It is
additionally required that all persons who seek licensure as a
foster family group home or foster family home or who are
currently acting as foster parents in any such home or who are
eighteen years of age or older living in any such home, shall
also submit to such criminal record check by signing a release.
The commissioner also has discretion to require any person not
specifically designated herein, who now owns, operates, is employed by or volunteers his or her services to, or who may
later own, operate, be employed by or volunteer his or her
services to, any day-care center, facility, family day-care
provider, group home, group home facility or other child care
shelter, institution or facility or juvenile detention facility
to submit to a record check in compliance with this section.
Such release shall be restricted in scope in compliance with the
following:
(1) The release shall authorize only the release of records
of criminal convictions of the person who signed the release, for
capital crimes, crimes involving violence, crimes sexual in
nature or crimes against or involving children.
(2) The release shall restrict the release of information to
the director or other person otherwise in charge of the day-care
center, facility, family day-care provider, foster family group
home, foster family home, group home, group home facility or
other child care shelter, institution or facility or juvenile
detention facility and the commissioner and shall direct that any
information so released shall be marked "personal and confidential" and be addressed only to such director or person
otherwise in charge and the commissioner.
(b) Any release executed hereunder shall plainly set forth
in its written terms all applicable restrictions. Such release
shall contain in plain, legible form, the person's name whose
background is being checked, date of birth, social security
number, place of birth, current driver's license number and name
of the state in which such driver's license issued. It shall
also indicate in chronological order the places of residence of
the person for the last fifteen years and whether the person
served in any branch of the armed services and, if so, which
branch. The release shall include a mailing address for the
commissioner and provide a space for the name and address of the
requesting day-care center, facility, family day-care provider,
foster family group home, foster family home, group home, group
home facility or other child care shelter, institution or
facility or juvenile detention facility.
(c) In the event any person fails or refuses to sign a
release as prescribed hereunder, he or she may not be considered for employment or allowed to work, perform volunteer services or
otherwise serve in any capacity at any day-care center, facility,
family day-care provider, foster family group home, foster family
home, group home, group home facility or other child care
shelter, institution, or facility or juvenile detention facility
subject to this article.
(d) Any police or governmental agency under the authority of
this state or any subdivision thereof who keeps and maintains
criminal records or who acts as a clearinghouse for same, shall
provide such records free of charge when any request is made
hereunder and is accompanied by a full and complete release, in
compliance with this section, authorizing the release of such
records, signed by the person whose records are being checked.
(e) Any day-care center, facility, family day-care provider,
foster family group home, foster family home, group home, group
home facility or other child care shelter, institution or
facility or juvenile detention facility that receives copies of
criminal records of any person under this section shall consider
such records in determining whether to hire such person or allow him or her to act as a volunteer. The safety and welfare of the
children who are served by the day-care center, facility, family
day-care provider, foster family group home, foster family home,
group home, group home facility or other child care shelter,
institution or facility or juvenile detention facility shall be
the foremost consideration in any decision relating to hiring
personnel or enlisting volunteers.
(f) Any records received under this section by any day-care
center, facility, family day-care provider, foster family group
home, foster family home, group home, group home facility or
other child care shelter, institution or facility or juvenile
detention facility, or by the commissioner, shall be held in the
strictest confidence and shall not be disclosed to any other
person unless such disclosure is commanded or ordered by the
clerk or judge of a court of record or unless such other person
is associated with or employed by, such day-care center,
facility, family day-care provider, foster family group home,
foster family home, group home, group home facility or other
child care shelter, institution or facility or juvenile detention facility or with the department and there exists a reasonable
basis to disclose same to such other person as the result of that
person's employment, volunteer status, supervisory or
occupational duties related to child care and supervision:
Provided, That nothing contained herein will prevent a day-care
center, facility, family day-care provider, foster family group
home, foster family home, group home, group home facility or
other child care shelter, institution or facility or juvenile
detention facility or any officer, employee, owner, volunteer or
associate thereof, or the commissioner from providing any such
criminal record to any police or governmental agency, department
or office involved in a criminal investigation involving: (1) A
day-care center, facility, family day-care provider, foster
family group home, foster family home, group home, group home
facility or other child care shelter, institution or facility or
juvenile detention facility, its officers, employees, agents,
associates or volunteers; or (2) any allegation of child abuse or
other criminal activity involving a child, in the event that it
reasonably appears that such criminal record bears relevance to such allegation or that it may assist such investigation. In the
event criminal records are received under this section and the
person to whom they apply is not employed, allowed to volunteer
or otherwise associate with or remain on the premises of, such
day-care center, facility, family day-care provider, foster
family group home, foster family home, group home, group home
facility or other child care shelter, institution or facility or
juvenile detention facility, such records, within two weeks of
receipt thereof, shall be: (1) Destroyed by incineration; or (2)
returned by certified mail, return receipt requested, to the
police or governmental agency, department or office from which
they came.
In cases when a person is hired, allowed to volunteer or
continue to work, reside in or otherwise serve in some capacity
at such day-care center, facility, family day-care provider,
foster family group home, foster family home, group home, group
home facility or other child care shelter, institution or
facility or juvenile detention facility, such day-care center,
facility, family day-care provider, foster family group home, foster family home, group home, group home facility or other
child care shelter, institution or facility or juvenile detention
facility may retain such records during the tenure of such
person's employment, volunteer or residential status or
association therewith. In no event may records received under
this section be retained for more than one year after termination
or resignation from employment, volunteer or residential status
or association. At or before the end of any year following the
termination or resignation of any such employee, volunteer or
associate such records shall be: (1) Destroyed by incineration;
or (2) returned by certified mail, return receipt requested, to
the police or governmental agency, department or office from
which they came. It shall be the duty of the commissioner to
insure that any applicable day-care center, facility, family
day-care provider, foster family group home, foster family home,
group home, group home facility or other child care shelter,
institution or facility or juvenile detention facility complies
with these provisions requiring the destruction or return of
records.
(g) In each instance when a criminal check is required to be
performed hereunder, the day-care center, facility, family
day-care provider, foster family group home, foster family home,
group home, group home facility or other child care shelter,
institution or facility or juvenile detention facility involved
shall complete the release form as provided hereunder with the
information required by this section. Upon completion thereof,
the form shall be forwarded to the commissioner who shall forward
it to each appropriate police or governmental agency, department
or office to be processed. The commissioner shall request that
the police or governmental agency, department or office reply to
the day-care center, facility, family day-care provider, foster
family group home, foster family home, group home, group home
facility or other child care shelter, institution or facility or
juvenile detention facility, and to the commissioner: Provided,
That any employer subject to this section who hires any person,
may do so contingent upon the result of a criminal record check
required hereunder: Provided, however, That in the event such
employer hires any person subject to such criminal record check and thereafter terminates such employee within one month after
receiving records showing a criminal conviction for a capital
offense, an offense involving violence, an offense sexual in
nature or against or involving a child or children, such employer
shall not be liable for civil damages in any action for wrongful
discharge from employment or other action asserted as the result
of such termination from employment.
(h) In determining which police or governmental agencies,
departments or offices from which to request a criminal record
check, the commissioner shall take into consideration the
following:
(1) The residence of the person whose background is being
checked;
(2) The state in which the person holds a valid driver's
license;
(3) The address, if any, indicated as a residence on the
person's driver's license;
(4) The person's places of residence for the last fifteen
years;
(5) Which branch of the armed services, if any, in which the
person served.
(i) Any person who fails to comply with the provisions
contained in this section to perform criminal record checks shall
be guilty of a misdemeanor, and, upon conviction thereof, shall
be fined not less than two hundred nor more than five hundred
dollars or be confined in the county or regional jail not more
than ninety days.
NOTE: The purpose of this bill is to provide a system to
perform criminal background checks for persons seeking to work in
the field of child care. The section provides a criminal penalty
for noncompliance.
This section is new; therefore, strike-throughs and
underscoring have been omitted.