North Carolina § 110-90 - 2. Mandatory child care providers' criminal history checks.

§ 110-90. 2. Mandatory child care providers' criminal history checks.

For purposes of this section: "Child care", notwithstanding the definition in G.S. 110-86, means any child care provided in child care facilities required to be licensed or regulated under this Article and nonlicensed child care homes approved to receive or receiving State or federal funds for providing child care. "Child care provider" means a person who: Is employed by or seeks to be employed by a child care facility providing child care as defined in subdivision (1) of this subsection, whether in temporary or permanent capacity, including substitute providers; Owns or operates or seeks to own or operate a child care facility or nonlicensed child care home providing child care as defined in subdivision (1) of this subsection; or Is a member of the household in a family child care home, nonlicensed child care home, or child care center in a residence and who is over 15 years old, including family members and nonfamily members who use the home on a permanent or temporary basis as their place of residence. "Criminal history" means a county, state, or federal criminal history of conviction or pending indictment of a crime or criminal charge, whether a misdemeanor or a felony, that bears upon an individual's fitness to have responsibility for the safety and well-being of children. Such crimes include, but are not limited to, the following North Carolina crimes contained in any of the following Articles of Chapter 14 of the General Statutes: Article 6, Homicide; Article 7B, Rape and Other Sex 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 14, Burglary; Article 16, Larceny; Article 17, Robbery; Article 19, False Pretenses and Cheats; Article 19A, Obtaining Property or Services by False or Fraudulent Use of Credit Device or Other Means; Article 19C, Identity Theft; Article 26, Offenses Against Public Morality and Decency; Article 27, Prostitution; Article 29, Bribery; Article 35, Offenses Against the Public Peace; Article 36A, Riots and Civil Disorders; Article 39, Protection of Minors; Article 40, Protection of the Family; Article 52, Miscellaneous Police Regulations; and Article 59, Public Intoxication. Such crimes also include cruelty to animals in violation of Article 3 of Chapter 19A of the General Statutes, 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 subdivision, such crimes also include similar crimes under federal law or under the laws of other states. "Substitute provider" means a person who temporarily assumes the duties of a staff person for a time period not to exceed two consecutive months and may or may not be monetarily compensated by the facility. "Uncompensated provider" means a person who works in a child care facility and is counted in staff/child ratio or has unsupervised contact with children, but who is not monetarily compensated by the facility. No person shall be a child care provider or uncompensated child care provider who has been any of the following: Convicted of a misdemeanor or a felony crime involving child neglect or child abuse. Adjudicated a "responsible individual" under G.S. 7B-311(b). Convicted of a "reportable conviction" as defined under G.S. 14-208.6(4). Effective January 1, 1996, the Department shall ensure that, prior to employment and every three years thereafter, the criminal history of all child care providers is checked and a determination is made of the child care provider's fitness to have responsibility for the safety and well-being of children based on the criminal history. The Department shall ensure that all child care providers are checked for county, State, and federal criminal histories. The Department may prevent an individual from being a child care provider if the Department determines that the individual is a habitually excessive user of alcohol, illegally uses narcotic or other impairing drugs, or is mentally or emotionally impaired to an extent that may be injurious to children. The Department of Public Safety shall provide to the Division of Child Development, Department of Health and Human Services, the criminal history from the State and National Repositories of Criminal Histories of any child care provider as requested by the Division. The Department shall notify in writing the child care provider, and the child care provider's employer, if any, or for nonlicensed child care homes the local purchasing agency, of the determination by the Department whether the child care provider is qualified to provide child care based on the child 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 care provider's criminal history to the child care provider or the child care provider's employer or local purchasing agency. The Department shall also notify the child care provider of the procedure for completing or challenging the accuracy of the criminal history and the child care provider's right to contest the Department's determination in court. 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. There shall be no liability for negligence on the part of an employer of a child care provider, an owner or operator of a child care facility, 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 is 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. The child care provider shall pay the cost of the fingerprinting and the federal criminal history record check in accordance with G.S. 143B-934. The Department of Public Safety shall perform the State criminal history record check. The Department of Health and Human Services shall pay for and conduct the county criminal history record check. Child care providers who reside outside the State bear the cost of the county criminal history record check and shall provide the county criminal history record check to the Division of Child Development as required by this section. Repealed by Session Laws 2013-410, s. 46, effective August 23, 2013. The Division shall provide to the Department of Public Safety, along with the request, the fingerprints of the provider to be checked, any additional information required by the Department of Public Safety, 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 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 federal criminal history record check. At the time of application the child care provider whose criminal history is to be checked shall be furnished with a statement substantially similar to the following: NOTICE CHILD CARE PROVIDER MANDATORY CRIMINAL HISTORY CHECK NORTH CAROLINA LAW REQUIRES THAT A CRIMINAL HISTORY RECORD CHECK BE CONDUCTED ON ALL PERSONS WHO PROVIDE CHILD CARE IN A LICENSED CHILD CARE FACILITY, AND ALL PERSONS PROVIDING CHILD CARE IN NONLICENSED CHILD CARE HOMES THAT RECEIVE STATE OR FEDERAL FUNDS. "Criminal history" means a county, state, or federal criminal history of conviction, pending indictment of a crime, or criminal charge, whether a misdemeanor or a felony, that bears on an individual's fitness to have responsibility for the safety and well-being of children. Such crimes include, but are not limited to, the following North Carolina crimes contained in any of the following Articles of Chapter 14 of the General Statutes: Article 6, Homicide; Article 7B, Rape and Other Sex 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 14, Burglary; Article 16, Larceny; Article 17, Robbery; Article 19, False Pretenses and Cheats; Article 19A, Obtaining Property or Services by False or Fraudulent Use of Credit Device or Other Means; Article 19C, Identity Theft; Article 26, Offenses Against Public Morality and Decency; Article 27, Prostitution; Article 29, Bribery; Article 35, Offenses Against the Public Peace; Article 36A, Riots and Civil Disorders; Article 39, Protection of Minors; Article 40, Protection of the Family; and Article 59, Public Intoxication. Such crimes also include cruelty to animals in violation of Article 3 of Chapter 19A of the General Statutes, 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 notice, such crimes also include 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 Health and Human Services on your fitness to provide child care, you may file a civil lawsuit within 60 days after receiving written notification of disqualification in the district court in the county where you live. Any child care provider who intentionally falsifies any information required to be furnished to conduct the criminal history record check shall be guilty of a Class 2 misdemeanor. Refusal to consent to a criminal history record check or intentional falsification of any information required to be furnished to conduct a criminal history record check is grounds for the Department to prohibit the child care provider from providing child care. Any child care provider who intentionally falsifies any information required to be furnished to conduct the criminal history shall be guilty of a Class 2 misdemeanor. A child 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 care provider within 60 days after receiving written notification of disqualification. Review of the Department's determination disqualifying a child care provider shall be de novo. No jury trial is available for appeals to district court under this section. History (1995, c. 507, s. 23.25(a); c. 542, s. 25.2; 1997-443, s. 11A.118(a); 1997-506, s. 7; 2012-160, s. 1; 2013-410, s. 46; 2013-413, s. 12; 2014-100, s. 17.1(o), (pp); 2014-115, s. 17; 2015-181, s. 47; 2015-264, s. 55.) Editor's Note. - Session Laws 2013-413, s. 61(b), provides: "Except as otherwise provided, this act is effective when it becomes law [August 23, 2013]." Session Laws 2013-413, s. 60(c), had provided that "This act becomes effective July 1, 2015." Session Laws 2014-115, s. 17, amended Session Laws 2013-413, s. 60(c), to replace the reference to "This act" with the words "This Part." Session Laws 2013-413, s. 61(a) is a severability clause. Session Laws 2015-181, s. 47, provides: "The Revisor of Statutes may correct statutory references, as required by this act, throughout the General Statutes. In making the changes authorized by this act, the Revisor may also adjust the order of lists of multiple statutes to maintain statutory order, correct terms, make conforming changes to catch lines and references to catch lines, and adjust subject and verb agreement and the placement of conjunctions." Pursuant to this authority, "Article 7B, Rape and Other Sex Offenses" was substituted for "Article 7A, Rape and Kindred Offenses" in subdivision (a)(3) and subsection (c) at the direction of the Revisor of Statutes. Session Laws 2015-181, s. 48, provides: "This act becomes effective December 1, 2015, and applies to offenses committed on or after that date. Prosecutions for offenses committed before the effective date of this act are not abated or affected by this act, and the statutes that would be applicable but for this act remain applicable to those prosecutions." Session Laws 2015-264, s. 91.7 contains a severability clause. Session Laws 2020-3, s. 3A.1(a), provides: "Unless the context clearly indicates otherwise, the following definitions apply in this Part: "(1) CDC. - The federal Centers for Disease Control and Prevention. "(2) COVID-19. - Coronavirus disease 2019. "(3) COVID-19 diagnostic test. - A test the federal Food and Drug Administration has authorized for emergency use or approved to detect the presence of the severe acute respiratory syndrome coronavirus 2. "(4) COVID-19 emergency. - The period beginning March 10, 2020, and ending on the date the Governor signs an executive order rescinding Executive Order No. 116, Declaration of a State of Emergency to Coordinate Response and Protective Actions to Prevent the Spread of COVID-19. "(5) COVID-19 antibody test. - A serological blood test the federal Food and Drug Administration has authorized for emergency use or approved to measure the amount of antibodies or proteins present in the blood when the body is responding to an infection caused by the severe acute respiratory syndrome coronavirus 2." Session Laws 2020-3, s. 3E.2(a)-(d), provides: "(a) Notwithstanding G.S. 110-90.2(b), the Department of Health and Human Services, Division of Child Development and Early Education, shall temporarily waive the requirement that current child care providers complete a fingerprint-based criminal history check every three years. "(b) In accordance with federal guidance, all available State and federal name-based criminal background checks for prospective employees seeking employment in licensed child care shall be completed. Prospective employees will be issued a provisional qualification status. In situations where only State and federal name-based checks were completed, fingerprint-based criminal history checks shall be completed within 60 days of Executive Order No. 116 being rescinded, in compliance with State law and rules. If fingerprint-based checks are not completed within 60 days of Executive Order No. 116 being rescinded, the prospective employee will be disqualified until a fingerprint-based check is completed. "(c) Notwithstanding any provision of law or rules to the contrary, the Department of Health and Human Services, Division of Social Services, shall temporarily waive any requirement to complete a fingerprint-based criminal history check pertaining to adoptions, foster care, or child care institutions. However, in accordance with federal guidance, all available name-based criminal background checks for prospective foster parents, adoptive parents, legal guardians, and adults working in child care institutions shall be completed, and, in situations where only name-based checks were completed, fingerprint-based criminal history checks shall be completed within 60 days of Executive Order No. 116 being rescinded, in compliance with State law and rules. "(d) This section is effective when it becomes law and expires 60 days after Executive Order No. 116 is rescinded, or December 31, 2020, whichever is earlier." Session Laws 2020-3, s. 5, is a severability clause. Effect of Amendments. - Session Laws 2012-160, s. 1, effective January 1, 2013, rewrote the section. Session Laws 2013-410, s. 46, effective August 23, 2013, repealed subsection (h), as added by Session Laws 2013-413, s. 12, which read: "The check of the State and National Repositories for the criminal history of a person required to be conducted by this section and directed to the State Bureau of Investigation shall be completed within 15 business days of the receipt of the properly submitted request from the Department of Health and Human Services. If the check reveals that the child care provider has no criminal history as defined by subdivision (a)(3) of this section, the Department of Health and Human Services shall make a determination of the fitness of the provider pursuant to subsection (d) of this section within 15 calendar days of receipt of the results of the criminal history check. If the check reveals that the child care provider has a criminal history as defined by subdivision (a)(3) of this section, the Department of Health and Human Services shall make a determination of the fitness of the provider pursuant to subsection (d) of this section within 30 business days of receipt of the results of the criminal history check." Session Laws 2013-413, s. 12, added subsection (h). For effective date, see editor's note. Session Laws 2014-100, s. 17.1(o) and (pp), effective July 1, 2014, substituted "Department of Public Safety" for "Department of Justice" throughout subsection (c) and in the second sentence of subsection (g), and substituted "G.S. 143B-934" for "G.S. 114-19.5" in the first sentence of subsection (g). Session Laws 2015-264, s. 55, effective October 1, 2015, substituted "G.S. 7B-311(b)" for "G.S. 7B-807(a1)" in subdivision (a1)(2). Legal Periodicals. - For article, "The Emperor's New Clothes: 'But the Emperor Has Nothing On!' G.S. 110-90.2's Invisible Protection of Children and Vexatious Impact on Citizens," see 24 N.C. Cent. L.J. 103 (2001).