Current through Register Vol. 47, No. 17, September 10, 2024
A.
Criminal records checks are required under the following circumstances:
1. In order to obtain any Colorado Bureau of
Investigation (CBI) and/or Federal Bureau of Investigation (FBI) fingerprint
criminal history records, each applicant listed below must have their
fingerprints taken and processed at a vendor approved by CBI. Approved vendors
may be located using the CBI website at Colorado.gov/cbi. Payment of the fee
for the criminal record check is the responsibility of the individual being
checked, identified as follows:
a. Each
applicant for an original license for a center, facility, or agency and any
adult eighteen (18) years of age or older who resides in the licensed center,
facility or agency.
b. Each exempt
family child care home provider who provides care for a child and each
individual who provides care for a child who is related to the individual
(referred collectively in this rule section as a "qualified provider"), if the
child's care is funded in whole or in part with money received on the child's
behalf from the publicly funded Colorado Child Care Assistance Program; and,
any adult eighteen (18) years of age or older who resides with a qualified
provider where the care is provided.
2. Each applicant for an original license for
a Neighborhood Youth Organization must comply with the criminal background
check requirements found at section
26.5-5-308, C.R.S.
a. The applicant must ascertain whether the
person being investigated has been convicted of felony child abuse as defined
in section
18-6-401, C.R.S., or a felony
offense involving unlawful sexual behavior as defined in section
16-22-102(9),
C.R.S. The Neighborhood Youth Organization must not hire a person as an
employee or approve a person as a volunteer after confirmation of such a
criminal history.
B. Only in the case of a children's resident
camp or school-age child care center, out-of-state persons employed in a
temporary capacity for less than ninety (90) days are not required to be
fingerprinted to obtain a criminal record check. Each person exempted from
fingerprinting and being checked with the Department's automated system must
sign a statement which affirmatively states that she/he has not been convicted
of any charge of child abuse or neglect, unlawful sexual offense, or any
felony. Out-of-state employees operating under this exemption must be
supervised at all times by a staff member who has successfully completed all
background checks.
1. Prospective employers
of such exempted persons must conduct reference checks of the prospective
employees in order to verify previous work history and must conduct personal
interviews with each such prospective employee.
C. At the time the annual declaration of
compliance (see rule section 2.107(B) is submitted to the Department, except as
required per this rule section 2.121(C), a criminal record check is required
only for adults living at the licensed facility who have not previously
obtained one. Because the Colorado Bureau of Investigation (CBI) provides the
Department with ongoing notification of arrests, owners, applicants, licensees,
and persons who live in the licensed facility who have previously obtained a
criminal record check, they are not required to obtain additional criminal
record checks.
1. Any resident of the family
child care home or qualified exempt provider home turning eighteen (18) years
of age shall complete the fingerprint process at an approved vendor fourteen
(14) calendar days prior to their 18th birthday.
2. The fingerprint process shall be completed
at an approved vendor within five (5) calendar days of when any new resident,
eighteen (18) years of age or older, begins residing in a family child care
home or qualified exempt provider home. Adults must not be allowed unsupervised
access to children in care until all background checks have been successfully
completed.
D. Each owner
and employee sixteen (16) years of age or older of a facility or agency shall
complete the fingerprint process at an approved vendor. Payment of the fee for
the criminal record check is the responsibility of the individual being checked
or the facility or agency. The results of the criminal record check, the CBI
and/or Federal Bureau of Investigation (FBI) response letters, must be
maintained at the home, center, facility, or agency and must be available for
review upon request by a Licensing Specialist.
1. When an individual leaves employment, the
facility must submit to the Department a completed Notification of Name Removal
form to request the removal of the individual's name from their facility
license number in the CBI database.
2. Except as required per rule section
2.121(D)(3), any adult volunteer, working as a staff member to meet the
required staff-child ratio or staff qualifications, who works fourteen (14)
days (112 hours) or more in a calendar year shall complete the fingerprint
process at an approved vendor. The results of the criminal record check must be
maintained at the facility or agency and must be available for inspection by a
Licensing Specialist. An employee operating as a volunteer to meet required
staff-child ratio that does not have a completed background check on file must
be supervised at all times by a qualified staff member who has successfully
completed all background checks.
3.
Criminal background check requests for volunteers, whose activities involve the
care and supervision of children; or who have unsupervised access to children,
must be submitted and successfully completed prior to caring for children or
allowing the individual unsupervised access to children in child care centers
(less than 24-hour care), school-age child care facilities, family child care
homes, and qualified exempt provider homes.
4. Requests for a criminal record check,
other than those required per this rule section 2.121(D)(4) must be completed
at an approved vendor within five (5) working days of the day that the
individual begins to work at the facility or agency.
a. Criminal background check requests must be
successfully completed prior to an individual caring for children or allowing
the individual unsupervised access to children in child care centers (less than
24-hour care), school-age child care facilities, family child care homes, and
qualified exempt provider homes.
b.
A National Sex Offender Registry check request must be submitted and
successfully completed prior to an individual caring for children or allowing
the individual unsupervised access to children in child care centers (less than
24-hour care), school-age child care facilities, family child care homes, and
qualified exempt provider homes.
5. Every five (5) years, requests for FBI
criminal record checks must be renewed by completing the fingerprint process at
an approved vendor. An updated clearance letter or verification of the
submission of the request must be obtained prior to five (5) years from the
date reflected on the current clearance letter.
6. Facilities and agencies that hire
individuals who have been convicted of any felony, except those listed in rule
section 2.121(D)(7) below, unlawful sexual behavior, or any misdemeanor, the
underlying factual basis of which has been found by the court on record to
include an act of domestic violence must inform the Department of that hiring
within fifteen (15) calendar days of receiving knowledge of the
conviction.
7. A child care
facility shall not employ or certify an individual who has been convicted of:
a. Child abuse, as defined in section
18-6-401, C.R.S.
b. A crime of violence, as defined in section
18-1.3-406(2),
C.R.S.
c. An offense involving
unlawful sexual behavior, as defined in section
16-22-102(9),
C.R.S.
d. A felony, the underlying
factual basis of which has been found by the court on the record to include an
act of domestic violence, as defined in section
18-6-800.3, C.R.S.
e. A felony involving physical assault,
battery, or a drug-related offense within the five years preceding the date of
application for a license or certificate.
f. A pattern of felony or misdemeanor
convictions within the ten (10) years immediately preceding submission of the
application. "Pattern of felony or misdemeanor" shall include consideration of
sections 26.5-5-317 and
26.5-5-309(4),
C.R.S., regarding suspension, revocation and denial of a license, and shall be
defined as:
1) Three (3) or more convictions
of third (3rd) degree assault as described in section
18-3-204, C.R.S., and/or any
misdemeanor, the underlying factual basis of which has been found by any court
on the record to include an act of domestic violence as defined in section
18-6-800.3, C.R.S.;
2) Five (5) misdemeanor convictions of any
type, with at least two (2) convictions of third (3rd) degree assault as
described in section
18-3-204, C.R.S., and/or any
misdemeanor, the underlying factual basis of which has been found by any court
on the record to include an act of domestic violence as defined in section
18-6-800.3, C.R.S.; or
3) Seven (7) misdemeanor convictions of any
type.
g. Any offense in
any other state, the elements of which are substantially similar to the
elements listed in this rule section 2.121(D)(7).
E. Payment of the fee for the FBI check is
the responsibility of the individual who is obtaining the check or the facility
or agency.
F. The Department may
deny, revoke, suspend, change to probationary or fine a child care facility if
the applicant(s), an affiliate of the applicant, or any person living with or
employed by the applicant has been found to violate any of the provisions set
forth in section
26.5-5-317(2),
C.R.S.
G. The Department may deny
an application for a child care facility license if the applicant is a relative
affiliate of a licensee, as described in section
26.5-5-303 (1.5)(d), C.R.S., of a
child care facility, which is the subject of a previous negative licensing
action or is the subject of a pending investigation by the Department that may
result in a negative licensing action.
H. For all CBI fingerprint-based criminal
history record information checks required in this rule section 2.121,
including those confirming a criminal history as well as those confirming no
criminal history, the Department will conduct a comparison search on the State
Judicial Department's court case management system and the sex offender
registry of the Colorado Department of Public Safety. The court case management
search must be based on name, date of birth, and address, in addition to any
other available criminal history data that the Department deems appropriate, is
used to determine the type of crime(s) for which a person was arrested or
convicted and the disposition thereof. The sex offender registry search is used
to determine whether the address of a licensee or prospective licensee is
listed as belonging to a registered sex offender.
I. Portability of Background Checks
1. Where two or more individually licensed
facilities are wholly owned, operated, and controlled by a common ownership
group or school district, a fingerprint-based criminal history records check
and a check of the records and reports of child abuse or neglect maintained by
the Colorado Department of Human Services, completed for one of the licensed
facilities of the common ownership group or school district pursuant to this
rule section for whom a criminal records check is required under section
26.5-5-316, C.R.S., may satisfy the
records check requirement for any other licensed facility under the same common
ownership group or school district. A new fingerprint-based criminal history
records check or new check of the records and reports of child abuse or neglect
maintained by the Colorado Department of Human Services is not required of such
an individual if the common ownership group or school district maintains a
central records management system for employees of all its licensed facilities;
takes action as required pursuant to section
26.5-5-309, C.R.S., when informed
of the results of a fingerprint-based criminal history record check or check of
the records and reports of child abuse or neglect maintained by the Colorado
Department of Human Services that requires action pursuant to the Child Care
Licensing Act; and informs the Department whenever an additional licensed
facility comes under or is no longer under its ownership or control.
2. When a licensee is inspected pursuant to
the Child Care Licensing Act and records regarding Colorado Bureau of
Investigation (CBI) and/or Federal Bureau of Investigation (FBI)
fingerprint-based criminal background checks, as well as records and reports of
child abuse and neglect maintained by the Department, and the comparison search
on the State Judicial Department's court case management system are held at a
central records management system, the licensee must be afforded fourteen (14)
calendar days to provide to the Department documentation necessary to verify
that employees at the licensed facility have the required records related to
fingerprint-based criminal background checks.
J. State-based background checks
1. The following background check requests
must be submitted and successfully completed for each state an individual has
resided in, in the past five years, prior to an individual caring for children
or allowing the individual unsupervised access to children in child care
centers (less than 24-hour care), school-age child care facilities, family
child care homes, and qualified exempt provider homes:
a. State criminal history check
b. State sex offender registry
check
c. State abuse and neglect
registry check
