§ 110-90.2. Mandatory child care providers' criminal history checks.
§ 110‑90.2. Mandatory child care providers' criminal history checks.
(a) For purposes of this section:
(1) "Child care", notwithstanding the definition inG.S. 110‑86, means any child care provided in child care facilitiesrequired to be licensed under this Article and nonlicensed child care homesapproved to receive or receiving State or federal funds for providing childcare.
(2) "Child care provider" means a person who:
a. Is employed by or seeks to be employed by a child carefacility providing child care as defined in subdivision (1) of this subsectionand has contact with the children;
b. Owns or operates or seeks to own or operate a child carefacility or nonlicensed child care home providing child care as defined insubdivision (1) of this subsection; or
c. Is a member of the household in a family child care home ornonlicensed child care home and is over 15 years old and is present whenchildren are in care. This subdivision shall apply only to new family childcare homes and nonlicensed homes beginning March 1, 1998.
(3) "Criminal history" means a county, state, orfederal criminal history of conviction or pending indictment of a crime,whether a misdemeanor or a felony, that bears upon an individual's fitness tohave responsibility for the safety and well‑being of children as setforth in G.S. 110‑91(8). Such crimes include the following North Carolinacrimes contained in any of the following Articles of Chapter 14 of the GeneralStatutes: Article 6, Homicide; Article 7A, Rape and Kindred Offenses; Article8, Assaults; Article 10, Kidnapping and Abduction; Article 13, Malicious Injuryor Damage by Use of Explosive or Incendiary Device or Material; Article 26,Offenses Against Public Morality and Decency; Article 27, Prostitution; Article39, Protection of Minors; Article 40, Protection of the Family; and Article 59,Public Intoxication. Such crimes also include possession or sale of drugs inviolation of the North Carolina Controlled Substances Act, Article 5 of Chapter90 of the General Statutes, and alcohol‑related offenses such as sale tounderage persons in violation of G.S. 18B‑302 or driving while impairedin violation of G.S. 20‑138.1 through G.S. 20‑138.5. In addition tothe North Carolina crimes listed in this subdivision, such crimes also includesimilar crimes under federal law or under the laws of other states.
(b) Effective January 1, 1996, the Department shall ensure thatthe criminal history of all child care providers is checked and a determinationis made of the child care provider's fitness to have responsibility for thesafety and well‑being of children based on the criminal history. TheDepartment shall ensure that child care providers who have lived in NorthCarolina continuously for the previous five years are checked for county andState criminal histories. The Department shall ensure that all other child careproviders are checked for county, State, and national criminal histories. TheDepartment may prohibit a child care provider from providing child care if theDepartment determines that the child care provider is unfit to haveresponsibility for the safety and well‑being of children based on thecriminal history, in accordance with G.S. 110‑91(8).
(c) The Department of Justice shall provide to the Division ofChild Development, Department of Health and Human Services, the criminalhistory from the State and National Repositories of Criminal Histories of anychild care provider as requested by the Division.
The Division shall provide to the Department of Justice, along with therequest, the fingerprints of the provider to be checked, any additionalinformation required by the Department of Justice, and a form consenting to thecheck of the criminal record and to the use of fingerprints and otheridentifying information required by the repositories signed by the child careprovider to be checked. The fingerprints of the provider shall be forwarded tothe State Bureau of Investigation for a search of their criminal history recordfile and the State Bureau of Investigation shall forward a set of fingerprintsto the Federal Bureau of Investigation for a national criminal history recordcheck.
At the time of application the child care provider whose criminalhistory is to be checked shall be furnished with a statement substantiallysimilar to the following:
"NOTICE
CHILD CARE PROVIDER
MANDATORY CRIMINALHISTORY CHECK
NORTH CAROLINA LAW REQUIRES THAT A CRIMINAL HISTORYCHECK BE CONDUCTED ON ALL PERSONS WHO PROVIDE CHILD CARE IN A LICENSED CHILDCARE FACILITY, AND ALL PERSONS PROVIDING CHILD CARE IN NONLICENSED CHILD CAREHOMES THAT RECEIVE STATE OR FEDERAL FUNDS.
"Criminal history" includes county, state,and federal convictions or pending indictments 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; Article10, Kidnapping and Abduction; Article 13, Malicious Injury or Damage by Use ofExplosive or Incendiary Device or Material; Article 26, Offenses Against PublicMorality and Decency; Article 27, Prostitution; Article 39, Protection ofMinors; Article 40, Protection of the Family; and Article 59, PublicIntoxication; violation of the North Carolina Controlled Substances Act,Article 5 of Chapter 90 of the General Statutes, and alcohol‑relatedoffenses such as sale to underage persons in violation of G.S. 18B‑302 ordriving 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. Yourfingerprints will be used to check the criminal history records of the StateBureau 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‑beingof children, you shall have the opportunity to complete, or challenge theaccuracy of, the information contained in the SBI or FBI identificationrecords.
If you disagree with the determination of the NorthCarolina Department of Health and Human Services on your fitness to providechild care, you may file a civil lawsuit within 60 days after receiving writtennotification of disqualification in the district court in the county where youlive.
Any child care provider who intentionally falsifiesany information required to be furnished to conduct the criminal history shallbe guilty of a Class 2 misdemeanor."
Refusal to consent to a criminal history check is grounds for theDepartment to prohibit the child care provider from providing child care. Anychild care provider who intentionally falsifies any information required to befurnished to conduct the criminal history shall be guilty of a Class 2misdemeanor.
(d) The Department shall notify in writing the child careprovider, and the child care provider's employer, if any, or for nonlicensedchild care homes the local purchasing agency, of the determination by theDepartment whether the child care provider is qualified to provide child carebased on the child care provider's criminal history. In accordance with the lawregulating the dissemination of the contents of the criminal history filefurnished by the Federal Bureau of Investigation, the Department shall notrelease nor disclose any portion of the child care provider's criminal historyto the child care provider or the child care provider's employer or localpurchasing agency. The Department shall also notify the child care provider ofthe procedure for completing or challenging the accuracy of the criminalhistory and the child care provider's right to contest the Department'sdetermination in court.
A child care provider who disagrees with the Department's decision mayfile a civil action in the district court of the county of residence of thechild care provider within 60 days after receiving written notification ofdisqualification.
(e) All the information that the Department receives through thechecking of the criminal history is privileged information and is not a publicrecord but is for the exclusive use of the Department and those personsauthorized under this section to receive the information. The Department maydestroy the information after it is used for the purposes authorized by thissection after one calendar year.
(f) There shall be no liability for negligence on the part ofan employer of a child care provider, an owner or operator of a child carefacility, 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 theprovisions of this section. The immunity established by this subsection shallnot extend to gross negligence, wanton conduct, or intentional wrongdoing thatwould otherwise be actionable. The immunity established by this subsection iswaived to the extent of indemnification by insurance, indemnification underArticle 31A of Chapter 143 of the General Statutes, and to the extent sovereignimmunity is waived under the Torts Claim Act, as set forth in Article 31 ofChapter 143 of the General Statutes.
(g) The child care provider shall pay the cost of thefingerprinting and the local check. The Department of Justice shall perform theState criminal history check. If the Department determines that a child careprovider who has lived continuously in the State less than five years is notdisqualified based on the local and State criminal history record check, theDepartment shall request a criminal history check from the National Repositoryof Criminal History from the Department of Justice. The Department of Health andHuman Services shall pay the cost for the national criminal history recordcheck. (1995, c. 507, s.23.25(a); c. 542, s. 25.2; 1997‑443, s. 11A.118(a); 1997‑506, s.7.)