GENERAL ASSEMBLY OF NORTH CAROLINA

SESSION 1995

S	2 

SENATE BILL 165
Judiciary I/Constitution Committee Substitute Adopted 4/24/95

Short Title:  Day Care Provider Records/AB.	(Public)

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Sponsors:

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Referred to: Appropriations

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February 9, 1995

A BILL TO BE ENTITLED
AN ACT TO MANDATE CRIMINAL HISTORY CHECKS OF CHILD DAY CARE PROVIDERS, TO STUDY THE USE OF THE CENTRAL REGISTRY ON CHILD ABUSE AND NEGLECT, AND TO APPROPRIATE FUNDS.
The General Assembly of North Carolina enacts:
Section 1.  Article 7 of Chapter 110 of the General Statutes is amended by adding a new section to read:
"§ 110-90.2.  Mandatory day care providers' criminal history checks.
(a)	For purposes of this section:
(1)	'Child day care', notwithstanding the definition in G.S. 110-86, means any child day care provided in child day care facilities and child day care homes, including child day care facilities and child day care homes required to be licensed or registered under this Article and nonregistered child day care homes approved to receive or receiving State or federal funds for providing child day care.
(2)	'Child day care provider' means a person who:
a.	Is employed by or seeks to be employed by a child day care facility or child day care home providing child day care as defined in subdivision (1) of this subsection and by G.S. 110-86; or
b.	Owns or operates or seeks to own or operate a child day care facility or child day care home providing child day care as defined in subdivision (1) of this subsection and by G.S. 110-86.
(3)	'Criminal history' means a county, State, or federal criminal history of conviction of a crime, whether a misdemeanor or a felony, that bears upon an individual's fitness to have responsibility for the safety and well-being of children as set forth in G.S. 110-90.1.  Such crimes include the following North Carolina crimes contained in any of the following Articles of Chapter 14 of the General Statutes:  Article 6, Homicide; Article 7A, Rape and Kindred Offenses; Article 8, Assaults; Article 10, Kidnapping and Abduction; Article 13, Malicious Injury or Damage by Use of Explosive or Incendiary Device or Material; Article 26, Offenses Against Public Morality and Decency; Article 27, Prostitution; Article 39, Protection of Minors; Article 40, Protection of the Family; and Article 59, Public Intoxication.  Such crimes also include possession or sale of drugs in violation of the North Carolina Controlled Substances Act, Article 5 of Chapter 90 of the General Statutes, and alcohol-related offenses such as sale to underage persons in violation of G.S. 18B-302 or driving while impaired in violation of G.S. 20-138.1 through G.S. 20-138.5.  In addition to the North Carolina crimes listed in this subparagraph, such crimes also include similar crimes under federal law or under the laws of other states.
(b)	Effective January 1, 1996, the Department shall ensure that the criminal history of all child day care providers are checked and a determination of the child day care provider's fitness to have responsibility for the safety and well-being of children based on the criminal history is made.  The Department shall ensure that child day care providers who have lived in North Carolina continuously for the previous five years are checked for county and State criminal histories.  The Department shall ensure that all other child day care providers are checked for county, State, and national criminal histories.  The Department may prohibit a child day care provider from providing child day care if the Department determines that the child day care provider is unfit to have responsibility for the safety and well-being of children based on the criminal history, in accordance with G.S. 110-90.1.
(c)	The Department of Justice shall provide to the Division of Child Development, Department of Human Resources, the criminal history from the State and National Repositories of Criminal Histories of any child day care provider as requested by the Division.
The Division shall provide to the Department of Justice, along with the request, the fingerprints of the provider to be checked, any additional information required by the Department of Justice, and a form consenting to the check of the criminal record and to the use of fingerprints and other identifying information required by the repositories signed by the child day care provider to be checked.  The fingerprints of the provider shall be forwarded to the State Bureau of Investigation for a search of their criminal history record file and the State Bureau of Investigation shall forward a set of fingerprints to the Federal Bureau of Investigation for a national criminal history record check.
At the time of application the day care provider whose criminal history is to be checked shall be furnished with a statement substantially similar to the following:

'NOTICE

CHILD DAY CARE PROVIDER
MANDATORY CRIMINAL HISTORY CHECK
    NORTH CAROLINA LAW REQUIRES THAT A CRIMINAL HISTORY CHECK BE CONDUCTED ON ALL PERSONS WHO PROVIDE CHILD DAY CARE IN A LICENSED OR REGISTERED CHILD DAY CARE FACILITY, AND ALL PERSONS PROVIDING CHILD DAY CARE IN NONREGISTERED CHILD DAY CARE HOMES THAT RECEIVE STATE OR FEDERAL FUNDS.
"Criminal history"includes county, State, and federal convictions of any of the following crimes:  the following Articles of Chapter 14 of the General Statutes:  Article 6, Homicide; Article 7A, Rape and Kindred Offenses; Article 8, Assaults; Article 10, Kidnapping and Abduction; Article 13, Malicious Injury or Damage by Use of Explosive or Incendiary Device or Material; Article 26, Offenses Against Public Morality and Decency; Article 27, Prostitution; Article 39, Protection of Minors; Article 40, Protection of the Family; and Article 59, Public Intoxication; violation of the North Carolina Controlled Substances Act, Article 5 of Chapter 90 of the General Statutes, and alcohol-related offenses such as sale to underage persons in violation of G.S. 18B-302 or driving while impaired in violation of G.S. 20-138.1 through G.S. 20-138.5; or similar crimes under federal law or under the laws of other states.  Your fingerprints will be used to check the criminal history records of the State Bureau of Investigation (SBI) and the Federal Bureau of Investigation (FBI).
If it is determined, based on your criminal history, that you are unfit to have responsibility for the safety and well-being of children, you shall have the opportunity to complete, or challenge the accuracy of, the information contained in the SBI or FBI identification records.
If you disagree with the determination of the North Carolina Department of Human Resources on your fitness to provide child day care, you may file a civil lawsuit in the district court in the county where you live.
Any child day care provider who intentionally falsifies any information required to be furnished to conduct the criminal history shall be guilty of a Class 2 misdemeanor.'
Refusal to consent to a criminal history check is grounds for the Department to prohibit the child day care provider from providing child day care.  Any child day care provider who intentionally falsifies any information required to be furnished to conduct the criminal history shall be guilty of a Class 2 misdemeanor.
(d)	The Department shall notify in writing the child day care provider, and the child day care provider's employer, if any, of the determination by the Department as to whether or not the day care provider is qualified to provide child day care based on the child day care provider's criminal history.  In accordance with the law regulating the dissemination of the contents of the criminal history file furnished by the Federal Bureau of Investigation, the Department shall not release nor disclose any portion of the child day care provider's criminal history to the child day care provider or the child day care provider's employer.  The Department shall also notify the child day care provider of the procedure for completing or challenging the accuracy of the criminal history and the child day care provider's right to contest the Department's determination in court.
A child day care provider who disagrees with the Department's decision may file a civil action in the district court of the county of residence of the child day care provider.
(e)	All the information that the Department receives through the checking of the criminal history is privileged information and is not a public record but is for the exclusive use of the Department and those persons authorized under this section to receive the information.  The Department may destroy the information after it is used for the purposes authorized by this section after one calendar year.
(f)	There shall be no liability for negligence on the part of an employer of a child day care provider, a child day care, a State or local agency, or the employees of a State or local agency arising from any action taken or omission by any of them in carrying out the provisions of this section.  The immunity established by this subsection shall not extend to gross negligence, wanton conduct, or intentional wrongdoing that would otherwise be actionable.  The immunity established by this subsection shall be deemed to have been waived to the extent of indemnification by insurance, indemnification under Article 31A of Chapter 143 of the General Statutes, and to the extent sovereign immunity is waived under the Torts Claim Act, as set forth in Article 31 of Chapter 143 of the General Statutes.
(g)	The child day care provider who seeks to be employed in child day care and the child day care provider who seeks to own or operate child day care shall pay the cost of the fingerprinting and the local check at the time the child day care provider seeks to provide child day care.  The Department of Justice shall perform the State criminal history check, and shall charge the Department of Human Resources a reasonable fee for conducting the checks of the criminal records authorized by this section.  The Department of Human Resources shall bear the costs of obtaining the State and national criminal history checks.  If the Department determines that a day care provider who has not lived continuously in the State for the previous five years is not disqualified based on the local and State criminal history record check, the Department shall request a criminal history check from the National Repository of Criminal History from the Department of Justice."
Sec. 2.  Article 2 of Chapter 114 of the General Statutes is amended by adding a new section to read:
"§ 114-19.5.  Criminal record checks of child day care providers.
The Department of Justice may provide to the Division of Child Development, Department of Human Resources, the criminal history  from the State and National Repositories of Criminal Histories in accordance with G.S. 110-90.2, of any child day care provider, as defined in G.S. 110-90.2.  The Division shall provide to the Department of Justice, along with the request, the fingerprints of the provider to be checked, any additional information required by the Department of Justice, and a form consenting to the check of the criminal record and to the use of fingerprints and other identifying information required by the State or National Repositories signed by the child day care provider to be checked.  The Division shall keep all information pursuant to this section privileged, as provided in G.S. 110-90.2(e).  The Department of Justice shall charge a reasonable fee for conducting the checks of the criminal records authorized by this section."
Sec. 3.  The North Carolina Child Day Care Commission shall adopt rules to implement this act, in consultation with the Divisions of Child Development and Social Services of the Department of Human Resources, and the Division of Criminal Information of the Department of Justice.
Sec. 4.  The Legislative Research Commission shall study the issue of using the records in the Central Registry on Child Abuse and Neglect for the purpose of conducting records checks of child day care providers.  In its study, the Commission shall evaluate current procedures for substantiating claims of child abuse or neglect and for maintaining records in the Central Registry, and shall determine what procedures should be implemented to (i) ensure that records are accurate, (ii) provide appropriate notice to interested parties, (iii) provide for expungement or correction of information, and (iv) provide for release of information.  The Commission shall report its findings and recommendations to the 1997 General Assembly.
Sec. 5.  There is appropriated from the General Fund to the Department of Human Resources the sum of four hundred forty-two thousand three hundred seventy-two dollars ($442,372) for the 1995-96 fiscal year and the sum of five hundred fifty-five thousand one hundred seventy-one dollars ($555,171) for the 1996-97 fiscal year to implement this act.  There is appropriated from the General Fund to the Department of Justice the sum of forty-seven thousand five hundred twenty-nine dollars ($47,529) for the 1995-96 fiscal year and the sum of ninety-five thousand fifty-eight dollars ($95,058) for the 1996-97 fiscal year to implement this act.
Sec. 6.  Section 4 of this act is effective upon ratification.  Section 5 of this act becomes effective July 1, 1995. The remainder of this act becomes effective January 1, 1996, and as defined in this act, applies to all child day care providers providing child day care as of that date, to all child day care providers newly hired in child day care employment, and to all child day care providers newly owning or operating child day care, on or after that date.