By Cristina Patzelt
Attorney, Thrun Law Firm, P.C.
Public Act 256 of 2017, effective March 28, 2018, amended many parts of the Child Care Organizations Act. One of the most significant changes is the new requirement that all child care center staff (employees, contractors,and volunteers) who have “unsupervised access to children” undergo a newly created “comprehensive background check.”
A comprehensive background check includes:
- Fingerprint (FBI/MSP check);
- NCIC Sex Offender Check;
- Central Registry Check (Child Abuse and Neglect Registry);
- Disciplinary Action Check; and
- Criminal and Child Abuse and Neglect Registry check for any states of residence in the past 5 years.
Many schools currently run licensed “child care centers,” like preschools, early childhood development programs like Head Start or the Great Start Readiness Program, before and after school care, and some school “camps.” Individuals currently working or volunteering in these programs who have unsupervised access to children must complete the new background check by September 30, 2018, and all staff members hired after that date who will have unsupervised access to children must complete the new background check before beginning work.
According to Michigan’s Bureau of Community and Health Services (BCHS), individuals who were fingerprinted for “school employment” must be re-fingerprinted because the school fingerprints “do not meet compliance with federal legislation.”
The BCHS also provided examples of individuals who have “unsupervised access to children”: (1) contractors (OT/PT therapists, hearing and vision screeners, social workers) who provide services in a child care center and have unsupervised contact with children; (2) parent volunteers who take children to the restroom unsupervised or transport children on field trips without supervision; and (3) building principals or secretaries, if a school’s child care center sends a student to that employee’s office unsupervised. BCHS considers an individual “supervised” if a staff member who has completed the background check and been determined eligible is present and can observe the unsupervised individual’s interaction with children and intervene if necessary. As of May 2018, information issued by BCHS indicates that bus drivers do not need the comprehensive background check (https://www.michigan.gov/documents/lara/New_Law_In_Town_for_web_LARA_template-edit-5-14-18_623101_7.pdf).
An individual is deemed “eligible” or “not eligible” to work or volunteer in a child care center based on the results of his or her comprehensive background check. Certain criminal convictions may make someone “ineligible,” but that ineligibility may not last forever. Depending on the offense, the individual may only be ineligible for 5, 7, or 10 years from the date of the conviction. For example, misdemeanor convictions for use or possession of a controlled substance and operating under the influence of a controlled substance will result in 5 years of ineligibility, while a felony conviction involving cruelty to animals makes an individual ineligible for 10 years. If the comprehensive background check reveals that an individual is ineligible, that individual must be “disconnected” or removed from the child care center. But, an individual who is found “ineligible” can request a 30-day redetermination of eligibility or make a Request for Continued Eligibility and seek to be “grandfathered in” if the individual was working for the child care center when the new law went into effect.
If your school runs a “child care center” that is already licensed by the state, school officials should ensure that any individual who has unsupervised access to children completes a “comprehensive background check.” Individuals who have not completed the background check by September 30, 2018 may not be permitted to have unsupervisedaccess to children. Failure to adhere to these new background check requirements could result in a loss of governmental immunity for an employee or the school and potential investigations and disciplinary action by the state.