MISSISSIPPI LEGISLATURE

1997 Regular Session

To: Public Health and Welfare

By: Representative Green (72nd)

AN ACT TO AMEND SECTION 45-31-11, MISSISSIPPI CODE OF 1972, TO PROVIDE THAT EMPLOYERS REQUESTING SEX OFFENSE CRIMINAL HISTORY RECORD INFORMATION ON BEHALF OF CERTAIN CHILD CARE ENTITIES FROM LOCAL LAW ENFORCEMENT AGENCIES BECAUSE THE DEPARTMENT OF PUBLIC SAFETY IS UNABLE TO PROVIDE THE INFORMATION SHALL NOT BE CHARGED MORE THAN FIVE DOLLARS FOR EACH SEX OFFENSE CRIMINAL HISTORY RECORD SEARCH; TO AMEND SECTIONS 43-16-9, 43-20-8, 43-20-57 AND 45-31-12, MISSISSIPPI CODE OF 1972, TO PROVIDE THAT CERTAIN CHILD CARE ENTITIES SHALL BE AUTHORIZED TO HIRE REPLACEMENT EMPLOYEES FOR ESSENTIAL EMPLOYEES WHOSE EMPLOYMENT IS TERMINATED WITHOUT FIRST OBTAINING SEX OFFENSE CRIMINAL HISTORY RECORD INFORMATION ON THE REPLACEMENT EMPLOYEES, PROVIDED THAT THE ENTITIES OBTAIN SUCH INFORMATION ON THE REPLACEMENT EMPLOYEES WITHIN 14 DAYS; AND FOR RELATED PURPOSES. 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:

SECTION 1. Section 45-31-11, Mississippi Code of 1972, is amended as follows:

45-31-11. (1) An authorized employer representative may request sex offense criminal history record information about any employee of the employer, provided the employee is within the scope of the authorization granted to the employer representative, from the sheriff's offices and the municipal police departments of any counties and towns within the state. The employer representative may also request any available information from the Mississippi Highway Safety Patrol and the request shall be granted insofar as the dissemination of the information does not conflict with state or federal regulations.

(2) The responding agency shall process requests from authorized employer representatives for sex offense criminal history record information about specified employees, provided such requests include:

(a) The name, address and signature of the authorized employer representative and the name and address of the employer;

(b) The name and address of the employer's facility in which the employee is employed or seeking to become employed;

(c) The name and other identifying information about the employee;

(d) Signed consent by the employee to a sex offense criminal history record information search;

(e) The mailing address of the employee; and

(f) Signature of the employee indicating that the employee has been notified of:

(i) The types of sex offense criminal history record information subject to dissemination under subsection (4) of this section or a description of such information;

(ii) The employer's right to require a record check as a condition of employment;

(iii) The employee's right to challenge the accuracy and completeness of any information which may be disseminated to the employer under this chapter.

(g) A copy of the employer's authorization by the Office of the Attorney General.

(3) Upon receipt of a request from an authorized employer representative for sex offense criminal history record information about an employee, the responding agency shall undertake a search for such information, provided the employee is not outside the scope of the employer authorization. The search shall be based on the identifying information provided by the authorized employer representative and shall include:

(a) Identifying sex offense criminal history record information about the employee which may exist in the records of the responding agency;

(b) If the information pertains to an arrest reported more than thirty (30) days prior to the date of the inquiry and no disposition has been reported, contacting appropriate officials in the local jurisdiction where the arrest or prosecution occurred to verify and update the information; and

(c) Determining whether the sex offense criminal history record information is subject to dissemination under subsection (4) of this section.

(4) Sex offense criminal history record information about an employee shall be disseminated to an authorized employer representative who has requested it in accordance with the following provisions:

(a) If the record check indicates a conviction for a sex offense or a conviction based on an arrest or on an initial charge for a sex offense, all sex offense criminal history record information about the incident shall be released;

(b) If the record check indicates an arrest for a sex offense pending at the time of the inquiry or an initial charge for a sex offense pending at the time of the inquiry, all sex offense criminal history record information shall be released; or

(c) If the record check indicates two (2) or more incidents resulting in arrest or initial charge for a sex offense, all sex offense criminal history record information shall be released.

(5) Within ten (10) days of receipt of a request by an authorized employer representative for sex offense criminal history record information, the responding agency shall send written notice of the results of the search to the authorized employer representative and to the employee. The notice shall include:

(a) A description of sex offense criminal history information subject to dissemination under subsection (4) of this section; and

(b) If the search for sex offense criminal history record information revealed no information subject to release under this chapter, a statement that the responding agency has no information subject to release under the chapter; or

(c) If the search for sex offense criminal history record information revealed information about the employee subject to release under this chapter, a summary of the information and, if applicable, a statement that disposition information could not be verified for certain noted arrests. A statement of the purpose for which the information is being disseminated, the potential liabilities and penalties for its misuse, and the procedures by which the employee might challenge the accuracy and completeness of the information shall be included with any sex offense criminal history record information disseminated.

(6) Immediately upon receipt of corrected or updated information disseminated under subsection (5)(c) of this section, the responding agency shall send written notice of the correction or updated information to the employee who was the subject of the record search, and to all employer representatives to whom notice of the results of the sex offense criminal history record search under subsection (5)(c) of this section were disseminated within the three (3) months prior to the correction, and upon request of the employee to any other employer representatives who previously received such information.

(7) The responding agency may charge reasonable fees to cover the actual costs of a sex offense criminal history record search. However, if an authorized employer representative is requesting sex offense criminal history record information on behalf of a child residential home as defined in Section 43-16-3, a child care facility as defined in Section 43-20-5, a family child care home as defined in Section 43-20-53, or an entity to which Section 45-31-12(2) applies, from a sheriff's office or a municipal police department because the Department of Public Safety is unable to provide the information, the fee charged by the sheriff's office or municipal police department shall not exceed Five Dollars ($5.00) for each sex offense criminal history record search performed for the representative.

SECTION 2. Section 43-16-9, Mississippi Code of 1972, is amended as follows:

43-16-9. (1) Such notification shall be filed by the executive director of the child residential home to the department upon forms provided by the department and shall contain the following information:

(a) Name, street address, mailing address and phone number of the home.

(b) Name of the executive director and all staff members of the home.

(c) Name and description of the agency or organization operating the home, which shall include a statement as to whether or not the agency or organization is incorporated.

(d) Name and address of the sponsoring organization of the home, if applicable.

(e) The names of all children living at the home which shall include the following personal data:

(i) Full name and a copy of the child's birth certificate;

(ii) Name and address of parent(s) or guardian(s); and

(iii) Name and address of other nearest relative.

(f) School(s) attended by the children served by such home.

(g) Fire department or State Fire Marshal inspection certificate.

(h) Local health department inspection certificate.

(i) A statement that sex offense criminal history record information on the operator and any employee, applicant for employment, or full-time volunteer at such home has been requested pursuant to Section 45-31-1 et seq.

(j) A statement that medical records are maintained for each child.

(2) If an essential employee of the child residential home has his or her employment terminated for any reason and the home must hire a replacement employee immediately in order for essential functions to be performed for the home, the home may hire a replacement employee to perform those essential functions without first requesting sex offense criminal history record information on the replacement employee, but the home must terminate the replacement employee from employment if the home does not request sex offense criminal history record information on the replacement employee within fourteen (14) days from his or her hire date.

SECTION 3. Section 43-20-8, Mississippi Code of 1972, is amended as follows:

43-20-8. (1) The licensing agency shall have powers and duties as set forth below in addition to other duties prescribed under this chapter:

(a) Promulgate rules and regulations concerning the licensing and regulation of child care facilities as defined herein;

(b) Have the authority to issue, deny, suspend, revoke, restrict or otherwise take disciplinary action against licensees as provided for in this chapter;

(c) Set and collect fees and penalties as provided for in this chapter; and

(d) Have such other powers as may be required to carry out the provisions of this chapter.

(2) Child care facilities shall assure that parents have welcome access to the child care facility at all times.

(3) Child care facilities shall require that current felony conviction record information is obtained and that current sex offense criminal history record information and child abuse registry checks are obtained, as provided in Section 45-31-1 et seq., and that such criminal record information and registry checks are on file for any employee or applicant for employment at such child care facility. In order to determine the applicant's suitability for employment, the applicant shall be fingerprinted. If no disqualifying record is identified at the state level, the fingerprints shall be forwarded by the Department of Public Safety to the FBI for a national criminal history record check. If an essential employee of the child care facility has his or her employment terminated for any reason and the facility must hire a replacement employee immediately in order for essential functions to be performed for the facility, the facility may hire a replacement employee to perform those essential functions without first obtaining sex offense criminal history record information on the replacement employee, but the facility must terminate the replacement employee from employment if the facility does not obtain sex offense criminal history record information on the replacement employee within fourteen (14) days from his or her hire date.

(4) The licensing agency shall require to be performed a felony conviction records check, a sex offense criminal records check and a child abuse registry check for any owner/operator of a child care facility and any person living in a residence used for child care. In order to determine the applicant's suitability for employment, the applicant shall be fingerprinted. If no disqualifying record is identified at the state level, the fingerprints shall be forwarded by the Department of Public Safety to the FBI for a national criminal history record check.

SECTION 4. Section 43-20-57, Mississippi Code of 1972, is amended as follows:

43-20-57. (1) No person shall knowingly maintain a family child care home if, in such family child care home, there resides, works or regularly volunteers any person who:

(a) (i) Has a felony conviction for a crime against persons;

(ii) Has a felony conviction under the Uniform Controlled Substances Act;

(iii) Has a conviction for a crime of child abuse or neglect;

(iv) Has a conviction for any sex offense as defined in Section 45-31-3(i); or

(v) Any other offense committed in another jurisdiction or any federal offense which, if committed in this state, would be deemed to be such a crime without regard to its designation elsewhere;

(b) Has been adjudicated a juvenile offender because of having committed an act which if done by an adult would constitute the commission of a felony and which is a crime against persons;

(c) Has had a child declared in a court order in this or any other state to be deprived or a child in need of care based on an allegation of physical, mental or emotional abuse or neglect or sexual abuse;

(d) Has had parental rights terminated pursuant to Sections 93-15-101 et seq.; or

(e) Has an infectious or contagious disease, as defined by the State Department of Health pursuant to Section 41-23-1.

(2) No person shall maintain a family child care home if such person has been found to be a disabled person in need of a guardian or conservator, or both.

(3) Any person who resides in the home and who has been found to be a disabled person in need of a guardian or conservator, or both, shall be included in the total number of children allowed in care.

(4) In accordance with the provision of this subsection (4), the State Department of Health shall have access to any court orders or adjudications of any court of record, any records of such orders or adjudications, criminal history record information in the possession of the Mississippi Highway Safety Patrol or court of this state concerning persons working, regularly volunteering or residing in a family child care home. The department shall have access to these records for the purpose of determining whether or not the home meets the requirements of Sections 43-20-51 through 43-20-65.

(5) No family child care home or its employees shall be liable for civil damages to any person refused employment or discharged from employment by reason of such home's compliance with the provisions of this section if such home acts in good faith to comply with this section.

(6) If an essential employee of the family child care home has his or her employment terminated for any reason and the home must hire a replacement employee immediately in order for essential functions to be performed for the home, the home may hire a replacement employee to perform those essential functions without first obtaining sex offense criminal history record information on the replacement employee, but the home must terminate the replacement employee from employment if the home does not obtain sex offense criminal history record information on the replacement employee within fourteen (14) days from his or her hire date.

SECTION 5. Section 45-31-12, Mississippi Code of 1972, is amended as follows:

45-31-12. (1) For the purposes of this section, the following terms shall have the meanings ascribed in this subsection:

(a) "Child" or "children" means any person under eighteen (18) years of age.

(b) "Sex offense" means any offense listed in Section 45-31-3(i).

(c) "Sex offense criminal history record information" has the meaning ascribed to this phrase in Section 45-31-3(j).

(2) Any institution, facility, clinic, organization or other entity that provides services to children in a residential setting where care, lodging, maintenance, and counseling or therapy for alcohol or controlled substance abuse or for any other emotional disorder or mental illness is provided for children, whether for compensation or not, that holds itself out to the public as providing such services, and that is entrusted with the care of the children to whom it provides services, because of the nature of the services and the setting in which the services are provided shall be subject to the provisions of this section.

(3) Each entity to which subsection (2) applies shall obtain sex offense criminal history record information, as authorized under Section 45-31-1 et seq., and felony conviction record information for each employee, prospective employee, volunteer or prospective volunteer of the entity who provides or would provide services to children for the entity. In order to determine the applicant's suitability for employment, the applicant shall be fingerprinted. If no disqualifying record is identified at the state level, the fingerprints shall be forwarded by the Department of Public Safety to the FBI for a national criminal history record check. If an essential employee of the entity has his or her employment terminated for any reason and the entity must hire a replacement employee immediately in order for essential functions to be performed for the entity, the entity may hire a replacement employee to perform those essential functions without first obtaining sex offense criminal history record information on the replacement employee, but the entity must terminate the replacement employee from employment if the entity does not obtain sex offense criminal history record information on the replacement employee within fourteen (14) days from his or her hire date.

(4) No entity to which subsection (2) applies shall employ any person, or allow any person to serve as a volunteer, who would provide services to children for the entity if the person: 

(a) (i) Has a felony conviction for a crime against persons;

(ii) Has a felony conviction under the Uniform Controlled Substances Act;

(iii) Has a conviction for a crime of child abuse or neglect;

(iv) Has a conviction for any sex offense as defined in Section 45-31-3; or

(v) Has a conviction for any other offense committed in another jurisdiction or any federal offense which would constitute one (1) of the offenses listed in this subsection without regard to its designation in that jurisdiction or under federal law;

(b) Has had a child declared in a court order in this or any other state to be deprived or a child in need of care based on an allegation of physical, mental or emotional abuse or neglect or sexual abuse; or

(c) Has had parental rights terminated pursuant to Section 93-15-101 et seq.

(5) Any entity that violates the provisions of this section by failure to obtain sex offense criminal history record information and felony conviction record information as required under subsection (3) of this section shall be subject to a penalty of up to Ten Thousand Dollars ($10,000.00) for each such violation and may be enjoined from further operation until it complies with this section in actions maintained by the Attorney General.

SECTION 6. This act shall take effect and be in force from and after July 1, 1997.