MISSISSIPPI LEGISLATURE
2005 Regular Session
To: Judiciary, Division B
By: Senator(s) Ross, Albritton, Browning, Butler, Burton, Carmichael, Davis, Dearing, Flowers, Frazier, Gollott, Gordon, Harvey, Hewes, Jackson (15th), Jackson (11th), Jackson (32nd), Jordan, King, Lee (35th), Mettetal, Moffatt, Pickering, Posey, Thames, Tollison, Little
AN ACT TO CREATE NEW SECTION 43-15-301, MISSISSIPPI CODE OF 1972, TO ENACT DEFINITIONS; TO CREATE NEW SECTION 43-15-303, MISSISSIPPI CODE OF 1972, TO PROHIBIT EMPLOYERS OFFERING A CHILD CARE SERVICE FROM UTILIZING SEX OFFENDERS AS EMPLOYEES OR VOLUNTEERS, AND TO PROVIDE PENALTIES THEREFOR; TO CREATE NEW SECTION 43-15-305, MISSISSIPPI CODE OF 1972, TO PROHIBIT SEX OFFENDERS FROM OWNING OR OPERATING A CHILD CARE SERVICE, AND TO PROVIDE PENALTIES FOR VIOLATIONS; TO CREATE NEW SECTION 43-15-307, MISSISSIPPI CODE OF 1972, TO PROHIBIT A SEX OFFENDER FROM WORKING FOR OR VOLUNTEERING AT A CHILD CARE SERVICE, AND TO PROVIDE PENALTIES FOR VIOLATIONS; TO AMEND SECTION 43-20-8, MISSISSIPPI CODE OF 1972, TO CONFORM TO THE PRECEDING PROVISIONS AND TO PROVIDE THAT CHILD CARE FACILITIES SHALL REQUIRE THAT ALL CRIMINAL RECORDS CHECKS SHALL BE OBTAINED FOR ANY CAREGIVER; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. The following shall be codified as Section 43-15-301, Mississippi Code of 1972:
43-15-301. As used in this act, the following words and phrases shall have the meanings ascribed herein unless the context clearly indicates otherwise:
(a) (i) "Child care service" means any school, business or volunteer service that is:
1. Licensed by the state to perform child care; or
2. Involves the care, instruction or guidance of minor children where a fee is charged for the care, instruction, guidance or participation of a child in the program or activity offered by the school, business or service; or
(ii) Any public school.
(b) "Child care service employer" means every person, firm, association, partnership, or corporation offering or conducting a child care service.
(c) "Applicant" means any person who is being considered for employment or as a volunteer by a child care service employer.
(d) "Convicted" means an adjudication of guilt or a plea of nolo contendere.
(e) "Sex offense" shall have the meaning ascribed in Section 45-33-23.
SECTION 2. The following shall be codified as Section 43-15-303, Mississippi Code of 1972:
43-15-303. (1) A child care service employer offering or conducting a child care service:
(a) Shall not employ or permit to volunteer an applicant who is listed on the sex offender registry as a sex offender under Section 45-33-25; and
(b) Shall not knowingly employ or permit to volunteer an applicant who has been convicted of a sex offense, who has been adjudicated not guilty of a sex offense by reason of insanity; or who has been adjudicated physically or mentally incompetent.
(2) (a) A child care service employer who violates this section is guilty of a misdemeanor, and upon conviction shall be fined not more than Twenty-five Thousand Dollars ($25,000.00), imprisoned for a period not to exceed six (6) months, or both.
(b) An employer who obtains an official report from the Mississippi Justice Information Center that the applicant is not registered as a sex offender shall not be guilty of a violation of this section, absent the employer's actual knowledge that the applicant is a sex offender.
SECTION 3. The following shall be codified as Section 43-15-305, Mississippi Code of 1972:
43-15-305. A person required to register as a sex offender under Section 45-33-25 may not own or operate a child care service. Any person who is required to register as a sex offender under Section 45-33-25 who knowingly owns or operates a child care service is guilty of a felony, and upon conviction shall be imprisoned in the custody of the Department of Corrections for a period not to exceed five (5) years.
SECTION 4. The following shall be codified as Section 43-15-307, Mississippi Code of 1972:
43-15-307. (1) A person required to register as a sex offender under Section 45-33-25 may not be employed by or volunteer at a child care service. Any person who is required to register as a sex offender under Section 45-33-25 who knowingly undertakes employment or volunteer service with a child care service is guilty of a felony, and upon conviction shall be imprisoned in the custody of the Department of Corrections for a period not to exceed five (5) years.
(2) Any person who knowingly fails to inform a child care service employer of a prior conviction of a sex offense when applying or volunteering for any child care service, or who applies for employment or as a volunteer for any child care service, knowing that the person is required to register as a sex offender under Section 45-33-25, shall be guilty of a felony, and upon conviction shall be imprisoned in the custody of the Department of Corrections for a period not to exceed five (5) years.
SECTION 5. 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 in Section 43-20-5;
(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) Each child care facility shall develop and maintain a current list of contact persons for each child provided care by that facility. An agreement may be made between the child care facility and the child's parent, guardian or contact person at the time of registration to inform the parent, guardian or contact person if the child does not arrive at the facility within a reasonable time.
(4) Child care facilities shall require that, for any current or prospective caregiver, all criminal records, background and sex offender registry checks and current child abuse registry checks are obtained. 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.
(5) The licensing agency shall require to be performed a criminal records background check and a child abuse registry check for all operators of a child care facility and any person living in a residence used for child care. The Department of Human Services shall have the authority to disclose to the State Department of Health any potential applicant whose name is listed on the Child Abuse Central Registry or has a pending administrative review. That information shall remain confidential by all parties. 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.
(6) The licensing agency shall have the authority to exclude a particular crime or crimes or a substantiated finding of child abuse and/or neglect as disqualifying individuals or entities for prospective or current employment or licensure.
(7) The licensing agency and its agents, officers, employees, attorneys and representatives shall not be held civilly liable for any findings, recommendations or actions taken under this section.
(8) All fees incurred in compliance with this section shall be borne by the child care facility. The licensing agency is authorized to charge a fee that includes the amount required by the Federal Bureau of Investigation for the national criminal history record check in compliance with the Child Protection Act of 1993, as amended, and any necessary costs incurred by the licensing agency for the handling and administration of the criminal history background checks.
SECTION 6. Section 3 of this act shall take effect and be in force from and after January 1, 2006; the remainder of this act shall take effect and be in force from and after July 1, 2005.