BACKGROUND CHECKS ON CHILD CARE WORKERS

House Bill 6202 would amend the child care licensing act (Public Act 116 of 1973, MCL 722.119) to place into statute an existing administrative rule (R 400.5104a) regarding child day care licensing. Specifically, the bill would prohibit a staff member of a child care organization from being present in a child care center, child caring institution, or child placing agency if that person has been convicted of child abuse or neglect, or a felony involving harm or threatened harm to another individual within the 10 years preceding the date of hire.

The bill would also prohibit a volunteer from having unsupervised contact with children in the care of a child care center, child caring institution, or child placing agency if he or she has been convicted of child abuse or neglect, or a felony involving harm or threatened harm to an individual within the 10 years preceding the date of the offer to volunteer.

Under the bill, before a staff member or unsupervised volunteer could have contact with a child in the care of a child care center, child caring institution, or child placing agency, he or she would be required to provide documentation from the Family Independence Agency (FIA) stating that he or she has not been named as a perpetrator in a central registry for child abuse or neglect. Further, for individuals who are employed by or volunteer at a child care center, child caring institution, or child placing agency, the organization would be required to comply with the above requirement no later than the date on which the organization's license is issued or first renewed after the effective date of the bill.

In addition, the bill would require each child care center to establish and maintain a policy regarding the supervision of volunteers, including parents who volunteer.

House Bill 6204 would amend the Child Protection Law (Public Act 238 of 1975, MCL 722.627j) to permit the Family Independence Agency (FIA) to provide to an individual, upon his or her written request, documentation stating that the individual is not listed as a perpetrator in a central registry case. The written request would have to include a statement by the individual stating that he or she is employed by, volunteers at, is applying for employment, or is seeking to volunteer in a child care center. The bill would permit an individual to share the document with the owner or licensee (or his or her designee) of the child care center, child caring institution, or child placing institution.

In addition, the FIA would be permitted to develop an automated system that would allow an individual applying for child-related employment or seeking to volunteer in a capacity that would allow unsupervised access to a child for whom the individual is not a person responsible for that child's health or welfare to be listed in the automated system if a screening of the individual finds that he or she has not been named in a central registry case as a perpetrator. The automated system would provide for public access to the list of individuals who have been screened. The system would be required to have adequate safeguards to ensure that information that is confidential under the Child Protection Law or any other state or federal law is not accessible or disclosed through the system.

Furthermore, the bill specifies that a case investigated prior to July 1, 1999 and entered into the central registry would be considered to be a central registry case if that case meets any of the following the criteria:

· Abuse or neglect is the suspected cause of a child's death.

· The child is the victim of suspected sexual abuse or sexual exploitation.

· Abuse or neglect resulting in severe physical injury to the child requires medical treatment or hospitalization.

House Bill 6205 would amend the child care licensing act (Public Act 116 of 1973, MCL 722.113d) to require a child care center operator or child caring institution operator to post on the premises a notice stating whether or not the center requires a criminal history check on its employees or volunteers. The Department of Consumer and Industry Services would promulgate rules to implement the bill.

BACKGROUND INFORMATION:

Central Registry. The Child Protection Law (MCL 722.627) requires the state to establish and maintain a central registry to keep a record of all reports filed with the FIA regarding of child abuse and neglect cases, in which relevant and accurate evidence is found to exist. The registry lists perpetrators and provides for the ability to look up any previous allegations of child abuse or neglect. The registry is required to list cases in which a non-household perpetrator has caused serious harm. In these instances, the abuse or neglect is the suspected cause of death, the child is the victim of suspected sexual abuse or exploitation, or the abuse or neglect leads to serious physical injuries, which require medical treatment or hospitalization. In addition, the FIA classifies child protective services (CPS) investigations into five categories. Those incidents that are listed as category 1 or 2 are also listed in the central registry. For category 2 cases, the FIA is required to provide child protective services. For category 2 cases, the FIA determines that there exists evidence of child abuse and there appears to be a high or intensive risk of future harm to the child. For category 1 cases, there exists evidence of child abuse or neglect and one or more of the following: the Child Protection Law or FIA policy requires a petition for court action; the child is not safe and petition for removal is needed; the cases was previously classified as category 2 and the family does not voluntarily participate in services; or the incident involves assault with the intent to commit criminal sexual conduct (CSC), a felonious attempt or conspiracy to commit CSC, an assault on a child that is punishable by a felony, or first or second degree child abuse. For those CPS cases that were investigated prior to July 1, 1999, a central registry case means an allegation of child abuse or neglect that the FIA substantiated.

Under the Child Protection Law, the information contained in the central registry is confidential, unless otherwise made public by the director of the FIA. However, with certain conditions, a confidential record may be disclosed to any of the following: a police or law enforcement agency; a physician; a person authorized to place a child in protective custody; a perpetrator or alleged perpetrator; a victim who is an adult at the time of the request; a person authorized to care for a child subject to a report; a court; a grand jury; a person engaged in research; a lawyer-guardian ad-litem; a child placing agency; juvenile court staff; a standing or select committee, or appropriations subcommittee of the legislature having jurisdiction child protective services matters; the children's ombudsman; a child fatality review team; a county medical examiner; or a citizens review panel.

Related Legislation. During the current legislative session, there have been several bills introduced that would require criminal background checks to be performed on child care workers. House Bill 4058, introduced by Representative Bob Brown, would amend the child care licensing act to require criminal background checks be conducted on all job applicants and employees. House Bill 6107, introduced by Representative William Callahan, would prohibit the FIA from issuing a payment to a child care provider unless the department performed a central registry search and requested a criminal history check on the child care provider. In addition, the bill would require that criminal background fingerprint checks be conducted on any child care provider applicants. During the previous legislative session, the House passed House Bill 5741, introduced by Representative Gary Woronchak, which would have created the Child-Related Employment Background Check Act. The bill would have required that background checks be conducted as a condition of licensure or registration as a child care provider or for those seeking employment as child care workers.

In addition, House Bill 5372 (Public Act 661 of 2002), introduced by Representative Mary Ann Middaugh, amended the Child Protection Law to require that the child care regulatory agency (which is currently the Department of Consumer and Industry Services) be notified if an individual accused of child abuse or neglect is a child care provider.

FISCAL IMPLICATIONS:

According to the House Fiscal Agency, House Bill 6202 would have no fiscal impact on the state or on local units of government. (1-13-02) It appears that House Bill 6204 would have an indeterminate impact on state costs. The legislation would require the FIA to collect and respond to additional requests for information and would allow for the development of an automated system, thus increasing administration costs. (1-9-02) House Bill 6205 would impose very modest new costs on DCIS related to promulgating and distributing new administrative rules. These costs would be met out of existing resources. (1-9-02)

ARGUMENTS:

For:

In most instances, when parents place their children in a child care center, the child's health, safety, and well-being are the paramount concerns. While there are several facets of the child care center that are considered when parents determine where to place their children, including the facilities and activities, ultimately the choice is dependant upon the perceived safety of the children. Parents should have the right to know their children are being placed in a center with a caregiver with a 'good moral character'. Absent state-mandated criminal background checks on all child care workers, several steps should be taken to encourage the use of criminal background checks at the behest of the employer and to notify parents as to the true extent of the use of criminal background checks in the hiring process. The package of bills will accomplish both of these purposes.

House Bill 6202 would place into statute a current administrative rule that prohibits staff and volunteers of a child care center from coming into contact with children if they have a central registry case. This provision appears to implicitly require that background checks be performed on child care workers. While this does not require a full-blown fingerprint and criminal records checks through the Federal Bureau of Investigation and the Department of State Police, this is a first step toward that goal. The bill would prohibit an individual from being present in a child care center or having contact with children in an organization if he or she has been convicted of child abuse or neglect, or a felony involving the harm or threatened harm to another individual. The only way to adequately ensure against this would be to conduct a criminal background check on staff members and volunteers. To ensure that a staff member or volunteer is suitable and of good moral character to serve as a child care worker, the bill would require an individual to provide the child care center with documentation stating the he or she has not been named as a perpetrator in a central registry case.

While the bill would require an individual to obtain, from the FIA, documentation stating that he or she is not named as a perpetrator in a central registry case, it is believed that the FIA does not have the explicit authority to do so. House Bill 6204 would provide the FIA with the authority to provide documentation. The Child Protection Law clearly states who may obtain information in a central registry case. The act permits, among several others, an individual who is the subject of a report or record to obtain information about that record. However, the act is silent in situations when an individual seeks to obtain information when he or she is not listed as an alleged perpetrator in a central registry case. Practically speaking, this makes sense. If a person is not listed in the registry, there is not any information that can be provided to that person and an employing child care center. However, the provisions of House Bill 6202 facilitate the need for establishing the clear authority of the FIA to provide documentation when there does not exist a central registry case.

For:

House Bill 6205 requires child care centers to post whether or not they require background checks on employees and volunteers. Often, parents wrongly assume that background checks are conducted on employees and volunteers as a condition of employment. This assumption could potentially be fatal or adversely impact the child. While most child care centers attempt to thoroughly screen potential employees, there still exists the possibility that a perpetrator could "fall through cracks", without a background check. The bill would provide parents with the added security of knowing whether a criminal background check has been conducted, which better enables them to properly make a determination regarding their choice for a child care organization and the protection of the child's health, safety, and well-being.

Against:

There appears to be several inconsistencies with House Bill 6202, many of which, it would appear, could be remedied with more sweeping and, as some believe, more protective language.

First, the bill would prohibit a staff member from being present in a child care organization facility if he or she has been convicted of either child abuse or child neglect, or a felony involving harm or threatened harm against another individual. However, prohibiting staff from being present in the actual facility of the child care organization appears to segregate the child and purportedly dangerous staff members - which is a legitimate concern when employing an individual who had previously been convicted of harm against a child or another person. [Why a child care organization would even employ such a person is, perhaps, a more pressing concern, yet one that is not addressed by this bill.] This segregation appears to limit those staff members to non-caregiving roles such as maintenance. However, prohibiting staff members from being present in the facility of a child care organization takes that segregation too far. If an employee is prohibited from being present in the facility of a child care organization, what could his or her duties really entail? On the surface, it appears that his or her duties would be limited to outdoor related maintenance such as mowing the lawn or shoveling the sidewalks. However, upon further examination, it appears that the staff member would be permitted to serve as a playground attendant or a bus driver, which still provides that individual with access to children. Furthermore, how would this provision be enforced and to what degree is this prohibition taken? Could the staff member be permitted to use the restroom, make a telephone call, or even have lunch in the facility?

Second, the bill would prohibit a volunteer from having unsupervised contact with children in the care of the child care organization if he or she has been convicted of child abuse or child neglect, or a felony involving harm or threatened harm against another individual. [Again, why a child care organization would even permit such a person to volunteer at the facility is a matter that is not addressed by the bill.] This provision is problematic for a variety of reasons as well. It is not entirely clear as to why a paid staff member and a volunteer are treated differently. If a staff member has been convicted of child abuse, he or she would not even be permitted to be present in the facility. Yet, a volunteer who has been convicted of child abuse would be permitted to be present in the facility and even have supervised contact with the children. Under this language, a paid staff member with a child abuse conviction could quit one day and volunteer the next, and be permitted access to the children. In addition, this provision prohibits a person with those convictions listed above from having unsupervised contact with a child. But, what safeguards are there to ensure that such a person does not have unsupervised contact? It is entirely plausible that the volunteer may abscond with the child and unduly punish or abuse him or her out of the direct supervision of a staff member. It may also be possible that a staff member may leave the room to attend to another child, thereby leaving the volunteer unsupervised, though not by the direct actions of that volunteer. If either instance were to occur, what would happen statutorily? Would the volunteer be fined? Would the child care organization have its license revoked? The bill is silent regarding a violation of any of the bill's provisions.

Third, the bill would require a staff member or 'unsupervised volunteer' to obtain documentation from the FIA stating that he or she is not listed on the central registry before he or she may have contact with a child in the care of the organization. This provision also does not appear to be consistent. As written, nothing in the bill explicitly prohibits staff members with the listed convictions from having contact with a child. (The bill does, however, explicitly state that a volunteer is prohibited from having unsupervised contact if he or she has been convicted of certain offenses). While those staff members with certain convictions would be prohibited from being present in the facility of the child care organization, it appears that they would still be permitted to have contact with children outside of the facility (such as the playground). In this instance, if a staff member with certain convictions is effectively prohibited from coming in contact with a child (as the staff member would be prohibited from being present in the facility of the child care organization), what is the necessity of providing the documentation? In addition, the requirement to provide documentation should be a condition of employment, rather being used to determine whether a person is permitted to have contact with a child. How helpful would a staff member or volunteer be in a child care organization if he or she were not permitted to have contact with a child because he or she had yet to provide documentation? As written, this provision appears to allow a person listed in the central registry access to a child in the care of a child care organization. It appears that a person (with a history of child abuse) could work at a child care organization in any non-caregiving capacity until he or she provides documentation of the non-existence of a central registry case (which would be never).

Fourth, the bill prohibits a volunteer from having unsupervised contact with a child if he or she is convicted of harm or threatened harm to another individual or child abuse or neglect, though an 'unsupervised volunteer' would have to provide documentation of the non-existence of a central registry case as a condition of being permitted to have any contact - supervised or unsupervised - with the child. However, a central registry case concerns itself with cases of child abuse or neglect, and not cases involving harm or threatened harm to another individual. It appears, then, that a person with a conviction involving harm or threatened harm to another individual would only have to demonstrate that he or she does not have a central registry case in order to be able to have contact with children in the center in order to have contact.

Finally, the bill provides that an 'unsupervised volunteer' may not have contact with a child unless he or she provides documentation of the nonexistence of a central registry case. However, it is not entirely clear who is considered to be an 'unsupervised volunteer'. Surely any person that volunteers in a child care setting must be supervised by someone (therefore, making that person a supervised volunteer). This also seems to imply that a supervised volunteer (which would ostensibly be all volunteers) would not be required to provide documentation of the nonexistence of a central registry case, as only 'unsupervised' volunteers would be required to provide such documentation. If an 'unsupervised volunteer' means, purportedly, a volunteer that has unsupervised contact with a child, then subsections two and three of the bill appear to contradict one another for the reasons stated in the previous paragraph. Would a volunteer with a felony conviction involving harm or threatened harm and who provides documentation of the nonexistence of a central registry case be permitted to have unsupervised contact with a child?

Against:

House Bill 6202 would prohibit unsupervised contact with children in the child care center if there has been a conviction of child abuse or neglect, or a felony involving harm or threatened harm to another individual. However, the bill fails to define what contact means. Would the bill only prohibit direct physical contact? Would the bill prohibit a volunteer and a child from being within a certain distance from each other? Would the volunteer be prohibited from being in the same room as a child? Would the volunteer and child be permitted to interact with each other?

Against:

House Bill 6202 falls short at protecting children in child day care centers. The bill implicitly requires a background check on a staff member or volunteer to ensure that he or she does not have a conviction. However, such a background check at the behest of the employer would only include a name check conducted through the Department of State Police. The results of name-based background checks would not be accurate if a person were to give a false name. A more thorough fingerprint check, conducted through the Federal Bureau of Investigation, which is the only true method to accurately identify a person and establish his or her criminal history, would not be conducted. Fingerprint checks are only conducted if such a search is required pursuant to a state or federal statute, an executive order, or by an administrative rule.

Analyst: M. Wolf

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This analysis was prepared by nonpartisan House staff for use by House members in their deliberations, and does not constitute an official statement of legislative intent.