Current through Register Vol. 50, No. 9, March 1, 2024
RELATES TO: KRS 17.500-17.580,
27A.090,
194A.005(1),
199.011(6), (9),
(14),
199.462(1),
211.684,
600.020(7),
(28), (40), (61), (62),
605.090(1)(b),
(6),
605.120,
605.130,
620.050(5),
Chapter 625,
45
C.F.R. 1356.30,
42 U.S.C.
247d,
671(a)(20),
5106a,
5141
NECESSITY, FUNCTION, AND CONFORMITY:
KRS
194A.050(1) requires the
secretary to promulgate administrative regulations necessary to implement
programs mandated by federal law, qualify for the receipt of federal funds, and
necessary to cooperate with other state and federal agencies for the proper
administration of the cabinet and its programs.
KRS
199.462(5) requires the
cabinet to promulgate an administrative regulation for the purpose of requiring
a criminal background investigation on behalf of a foster or adoptive parent
applicant, an adult member of the applicant's household, or a relative or
fictive kin caregiver.
KRS
605.150 authorizes the cabinet to promulgate
administrative regulations to implement the provisions of
KRS
605.130(7), by which the
cabinet shall perform such other services as may be deemed necessary for the
protection of children.
KRS
199.640(5) authorizes the
cabinet to promulgate administrative regulations establishing basic standards
of care and service for child-placing agencies relating to the health and
safety of all children in the care of the agency. This administrative
regulation establishes background check requirements for relative and fictive
kin caregivers, or applicants seeking to provide foster or adoptive services.
Additionally, this administrative regulation imposes a stricter requirement
than the federal mandate because the cabinet requires the denial of an
applicant if: a criminal record check conducted on behalf of an adult household
member reveals physical abuse, battery, or a drug or alcohol-related felony
within the previous five (5) year period or a felony involving a spouse, a
child, sexual violence, or death; or (2) a child abuse or neglect check
conducted by the cabinet reveals that a household member, twelve (12) years of
age or older, committed sexual abuse or sexual exploitation of a child, has
been responsible for a child fatality related to abuse or neglect, or has had
parental rights terminated involuntarily.
Section
1. Definitions.
(1) "Address
check" means a search of the Sex Offender Registry to determine if an address
is a known address of a registered sex offender.
(2) "Administrative review" means that the
status of the individual subject to the child abuse and neglect check is
pending the outcome of an:
(a) Investigation
or assessment in accordance with 922 KAR 1:330; or
(b) Appeal concerning a cabinet substantiated
finding of child abuse or neglect.
(3) "Adolescent member of the household"
means a youth who:
(a) Resides in the home of:
1. An individual who applies for approval or
has been approved to provide foster or adoptive services; or
2. A relative or fictive kin
caregiver;
(b) Is age
twelve (12) through age seventeen (17); and
(c) Is not placed in the home by a state
agency.
(4) "Adult
member of the household" means an adult who:
(a) Resides in the home of:
1. An individual who applies for approval or
has been approved to provide foster or adoptive services; or
2. A relative or fictive kin caregiver;
and
(b) Is eighteen (18)
years of age or older.
(5) "Applicant" means an individual who
applies for approval as a foster or adoptive parent of a child in the custody
of the state under:
(a)922 KAR 1:350,
Requirements for public child welfare agency foster parents, adoptive parents,
and respite care providers; or
(b)922 KAR 1:310, Standards for child-placing
agencies.
(6) "Cabinet"
is defined by
KRS
194A.005(1) and
600.020(7).
(7) "Child fatality" is defined by
KRS
211.684.
(8) "Child-placing agency" is defined by
KRS
199.011(6).
(9) "Fictive kin" is defined by
KRS
199.011(9) and
600.020(28).
(10) "KARES system" means the cabinet's
secure, web-based application used to access abuse and neglect registries and
facilitate fingerprint-supported state and national criminal background checks
for authorized users of the system.
(11) "Kentucky National Background Check
Program" or "NBCP" means a background screening program administered by the
cabinet in accordance with
906 KAR
1:190.
(12) "Near fatality" is defined by
KRS
600.020(40) and
42
U.S.C.
5106a(b)(4)(A).
(13) "Rap back system" is defined by
KRS
199.011(14).
(14) "Relative caregiver" means a relative
with whom the child is, or shall be, placed by the cabinet.
(15) "Sex Offender Registry" means the
registration system for adults who have committed sex crimes or crimes against
minors established in accordance with
KRS
17.500 through
17.580.
(16) "Sexual abuse" is defined by
KRS
600.020(61).
(17) "Sexual exploitation" is defined by
KRS
600.020(62).
Section 2. Background Checks
Required for Foster or Adoptive Parent Applicants.
(1) An applicant, and each adult member of
the household, shall submit to a background check in accordance with Section 4
of this administrative regulation, which shall include:
(a) An in-state criminal records check,
conducted pursuant to
KRS
199.462(1), by the:
1. Kentucky Justice and Public Safety
Cabinet; or
2. Administrative
Office of the Courts;
(b) A child abuse or neglect check conducted
by the cabinet for each state of residence during the past five (5)
years;
(c) A criminal records check
conducted by means of a fingerprint check of the Criminal History Record
Information administered by the Federal Bureau of Investigation; and
(d) An address check of the Sex Offender
Registry.
(2) Prior to
approval of an applicant, each adolescent member of the household shall
complete a DPP-157, Background Check Request for Foster or Adoptive Applicants
and Adolescent or Adult Household Members, and submit to a child abuse or
neglect check conducted by the cabinet.
Section 3. Background Checks for Foster or
Adoptive Applicants Who Will Accept Placement of a Child Not in the Custody of
the Cabinet.
(1) An individual applying to
accept placement of a child not in the custody of or otherwise made the legal
responsibility of the cabinet or the Department of Juvenile Justice, pursuant
to 922 KAR 1:310, shall be exempt from enrollment in KARES and subject to the
requirements established in Section 8(3) of this administrative
regulation.
(2) An applicant
pursuant to 922 KAR 1:310 and each adult and adolescent member of the household
shall complete a separate DPP-157 and submit to:
(a) An in-state criminal records check,
conducted pursuant to
KRS
199.462(1), by the:
1. Kentucky Justice and Public Safety
Cabinet; or
2. Administrative
Office of the Courts;
(b) A child abuse or neglect check conducted
by the cabinet pursuant to 922 KAR 1:470;
(c) A criminal records check conducted by
means of a fingerprint check of the Criminal History Record Information
administered by the Federal Bureau of Investigation; and
(d) An address check of the Sex Offender
Registry.
(3) A Kentucky
child abuse or neglect check conducted by the cabinet shall identify the name
of each applicant, adolescent member of the household, or adult member of the
household who has:
(a) Been found by the
cabinet to have:
1. Committed sexual abuse or
sexual exploitation of a child;
2.
Been responsible for a child fatality or near fatality related to abuse or
neglect;
3. Abused or neglected a
child within the seven (7) year period immediately prior to the application;
or
4. Had parental rights
terminated; or
(b) A
matter pending administrative review.
(4) An applicant shall not be approved if:
(a) A criminal records check reveals that the
applicant, or adult member of the household, has a:
1. Felony conviction involving:
a. A spouse, a child, sexual violence, or
death as described by
42 U.S.C.
671(a)(20); or
b. Physical abuse, battery, a drug, or
alcohol within the five (5) year period prior to application;
2. Criminal conviction relating to
child abuse or neglect; or
3. Civil
judicial determination related to child abuse or neglect;
(b) A child abuse or neglect check reveals
that the applicant, adolescent member of the household, or adult member of the
household, has been found to have:
1.
Committed sexual abuse or sexual exploitation of a child;
2. Been responsible for a child fatality or
near fatality related to abuse or neglect; or
3. Had parental rights terminated
involuntarily in accordance with
KRS 625.050 through
625.120 or another
state's laws; or
(c) An
address check of the Sex Offender Registry and supporting documentation confirm
that a sex offender resides at the applicant's home address.
(5) An individual identified in
accordance with subsection (3) of this section may submit an open records
request in accordance with 922 KAR 1:510.
Section 4. Fingerprint-Based Background
Checks.
(1) Fingerprint-based background
checks shall be conducted for the following individuals through the Kentucky
National Background Check Program pursuant to
906 KAR
1:190, using the KARES system:
(a) An applicant and each adult member of the
household;
(b) A relative or
fictive kin caregiver who has lived outside of the state of Kentucky within the
last five (5) years; and
(c) An
applicant who was approved under the waiver for fingerprint-based background
checks during the declared national emergency caused by the COVID-19 pandemic,
with only a name-based criminal background check.
(2) An individual meeting the criteria of
subsection (1) of this section shall provide to the cabinet or child-placing
agency:
(a) A copy of his or her driver's
license or other government-issued photo identification for verification that
the photograph and name clearly match the individual submitting to the check;
and
(b) A completed and signed:
1. DPP-162, Applicant Waiver Agreement and
Statement; and
2. DPP-163,
Disclosures to be Provided to and Signed by the Applicant and Adult Household
Members.
(3)
Cabinet or child-placing agency staff shall log on to the NBCP portal and enter
the individual's information for a check of the:
(a) Child abuse and neglect central registry
pursuant to 922 KAR 1:470;
(b)
National Crime Information Center's National Sex Offender Registry in
accordance with
34 U.S.C.
20921; and
(c) Sex Offender Registry in accordance with
KRS
17.500 through
17.580.
(4)
(a) In accordance with
KRS
199.462(2) and
42 U.S.C.
671(a)(20), the cabinet or
child-placing agency shall submit payment via credit or debit card for a state
and national fingerprint-supported criminal history background check performed
by the Department of Kentucky State Police (KSP) and the Federal Bureau of
Investigation (FBI), including the rap back system. If an applicant's rap back
has not expired, a new fingerprint check shall not be required.
(b) A child-placing agency enrolled in the
NBCP shall pay a fee not to exceed twenty-five (25) dollars in addition to any
fees charged in accordance with paragraph (a) of this subsection for the actual
cost of processing a fingerprint-supported state and national criminal
background check and for providing rap back services for each
applicant.
(5)
(a) Upon submission of payment in accordance
with subsection (4) of this section, cabinet or child-placing agency staff
shall print a copy of the DPP-164, Applicant Live Scan Fingerprinting Form,
from the NBCP portal and provide the form to the applicant, adult member of the
household, or relative or fictive kin caregiver.
(b) Cabinet or child-placing agency staff
shall:
1. Have no more than ninety (90)
calendar days from the date of payment pursuant to subsection (4) of this
section to submit the applicant's fingerprints at an authorized collection site
for NBCP; and
2. Instruct the
applicant or other individual to present the completed DPP-164 and copy of
driver's license or other government-issued photo identification to the
designated agent at an authorized collection site prior to fingerprint
submission.
(6) Upon completion of the background check
required by this section or Section 6 of this administrative regulation, the
cabinet shall provide notice to the requesting agency that the applicant or
individual is:
(a) Approved; or
(b) Not approved due to a disqualifying
background check result pursuant to subsection (7) of this section.
(7) An applicant or individual
shall not be approved if the results of the background check indicate a:
(a) Felony conviction involving:
1. A spouse, a child, sexual violence, or
death as established in
42 U.S.C.
671(a)(20); or
2. Physical abuse, battery, drugs, or alcohol
within the five (5) year period prior to application;
(b) Criminal conviction relating to child
abuse or neglect;
(c) Civil
judicial determination related to child abuse or neglect;
(d) Result of a child abuse or neglect check
in which the applicant, relative or fictive kin caregiver, adolescent member of
the household, or adult member of the household, has been found to have:
1. Committed sexual abuse or sexual
exploitation of a child;
2. Been
responsible for a child fatality or near fatality related to abuse or neglect;
or
3. Had parental rights
terminated involuntarily pursuant to
KRS 625.050 through
625.120 or another
state's laws; or
(e)
Result of an address check in the Sex Offender Registry and supporting
documentation that a sex offender resides at the applicant's or individual's
home address.
(8) An
applicant or individual meeting the requirement of subsection (1) of this
section may submit an open records request in accordance with 922 KAR
1:510.
Section 5.
Request for a Child Abuse or Neglect Check from Another State.
(1) The cabinet shall conduct a child abuse
or neglect check as required by
42 U.S.C.
671(a)(20) if a:
(a) Completed DPP-157 or DPP-159, Background
Check Request for Relative and Fictive Kin Caregivers, or Adolescent and Adult
Household Members, is submitted to the cabinet; or
(b) Request is received on agency letterhead
and includes two (2) numeric identifiers.
(2) The cabinet shall:
(a) Protect the confidentiality of the
information transmitted by the cabinet to a child welfare agency; and
(b) Waive the fee specified in 922 KAR
1:470.
Section
6. Background Checks Required for a Relative or Fictive Kin
Caregiver.
(1) A relative or fictive kin
caregiver, and each adult member of the household, shall complete a DPP-159 and
submit to:
(a) An in-state criminal records
check, conducted pursuant to
KRS
199.462(1) by the:
1. Kentucky Justice and Public Safety
Cabinet; or
2. Administrative
Office of the Courts;
(b) A child abuse or neglect check conducted
by the cabinet;
(c) An address
check of the Sex Offender Registry; and
(d) A fingerprint-based background check
conducted through the NBCP, beginning July 1, 2021, if the relative or fictive
kin caregiver, or adult household member, has lived outside the state of
Kentucky during the past five (5) years.
(2) An adolescent member of a relative or
fictive kin caregiver's household shall complete a DPP-159 and submit to a
child abuse or neglect check conducted by the cabinet.
(3) A child abuse or neglect check conducted
by the cabinet shall identify the name of each applicant and adolescent and
adult member of the household and include any finding consistent with Section
4(7) of this administrative regulation.
(4) A relative or fictive kin caregiver shall
not be approved if a criminal records check, a child abuse and neglect check,
or an address check of the Sex Offender Registry reveals a finding consistent
with Section 4(7) of this administrative regulation.
(5) An individual meeting the requirement of
subsection (1) of this section may submit an open records request in accordance
with 922 KAR 1:510.
Section
7. Approval.
(1) Except for the
provisions of Section 4(7) or 6(4) of this administrative regulation, approval
of an applicant, fictive kin, or relative caregiver who has been convicted of a
nonviolent felony or misdemeanor, has been found by the cabinet or another
child welfare agency to have abused or neglected a child, or whose parental
rights have been terminated voluntarily, shall be handled on a case-by-case
basis with consideration given to the:
(a)
Nature of the offense;
(b) Length
of time that has elapsed since the event; and
(c) Applicant's life experiences during the
ensuing period of time.
(2) Except for the provisions of Section 4(7)
or 6(4) of this administrative regulation, an applicant, fictive kin, or
relative caregiver may be approved on a case-by-case basis in accordance with
the criteria described by subsection (1)(a) through (c) of this section if:
(a) An adolescent member of the household
has:
1. Been found by the cabinet to have
abused or neglected a child; or
2.
Had parental rights terminated voluntarily in accordance with
KRS 625.040 through
625.046
or another state's laws; or
(b) An adult member of the household has:
1. Been convicted of a nonviolent felony or
misdemeanor;
2. Been found to have
abused or neglected a child; or
3.
Had parental rights terminated voluntarily in accordance with
KRS 625.040 through
625.046
or another state's laws.
Section 8. Reevaluation.
(1) Once enrolled in KARES, an approved
foster or adoptive parent and each adult member of the household shall maintain
enrollment in KARES.
(2) An
approved foster or adoptive parent and each adult member of the household not
already enrolled in KARES, with the exception of individuals specified in
Section 3 of this administrative regulation, shall submit to a
fingerprint-based background check required by Section 4 of this administrative
regulation prior to or during the anniversary month of initial
approval.
(3) An applicant
specified in Section 3 of this administrative regulation and not enrolled in
KARES shall submit annually, prior to or during the anniversary month of
initial approval, to:
(a) A criminal records
check as described in Section 2(1)(a) of this administrative
regulation;
(b) A child abuse or
neglect check conducted by the cabinet; and
(c) An address check of the Sex Offender
Registry.
(4)
(a) If an adult becomes a new member of an
approved foster or adoptive parent's household, the new adult member of the
household shall submit to background checks within thirty (30) calendar days of
residence within the household in accordance with Section 4 of this
administrative regulation.
(b) If
an adult becomes a new member of a relative or fictive kin caregiver's
household, the new adult member of the household shall submit to background
checks within thirty (30) calendar days of residence within the household in
accordance with Section 6 of this administrative regulation.
(5) If an adolescent becomes a new
member of an approved foster or adoptive parent or a relative or fictive kin
caregiver's household, the new adolescent member of the household shall submit
to a child abuse and neglect check conducted by the cabinet within thirty (30)
calendar days of residence within the household in accordance with Section 2(2)
or 6(2) of this administrative regulation, respectively.
Section 9. Maintenance of Records.
(1) A child-placing agency shall maintain the
approval status of each foster and adoptive applicant who has submitted to a
fingerprint-based criminal background check by reporting the status in the NBCP
web-based system.
(2) A completed
copy of each DPP-157 submitted pursuant to Section 2(2), 3(2), or 5 of this
administrative regulation shall be maintained by the child-placing
agency.
(3) A completed copy of
each DPP-159 submitted and criminal records check conducted pursuant to Section
5 or 6 of this administrative regulation shall be maintained.
Section 10. Communications. This
administrative regulation shall not limit the cabinet's ability to discuss the
qualifications or fitness of an applicant or an existing foster or adoptive
parent with a child-placing agency in accordance with:
(1)
KRS
620.050(5); or
(2) The terms and conditions of:
(a) A release of information signed by the
applicant or foster or adoptive parent; or
(b) The agreement between the cabinet and the
child-placing agency.
Section 11. Incorporation by Reference.
(1) The following material is incorporated by
reference:
(a) "DPP-157, Background Check
Request for Foster or Adoptive Applicants and Adolescent or Adult Household
Members", 07/21;
(b) "DPP-159,
Background Check Request for Relative and Fictive Kin Caregivers, or Adolescent
and Adult Household Members ", 06/21;
(c) "DPP-162, Applicant Waiver Agreement and
Statement", 07/21;
(d) "DPP-163,
Disclosures to be Provided to and Signed by the Applicant and Adult Household
Members", 06/21; and
(e) "DPP-164,
Applicant Live Scan Fingerprinting Form", 06/21.
(2) This material may be inspected, copied,
or obtained, subject to applicable copyright law, at the Cabinet for Health and
Family Services, 275 East Main Street, Frankfort, Kentucky 40621, Monday
through Friday, 8 a.m. to 4:30 p.m. This material may also be viewed on the
department's Web site at
https://chfs.ky.gov/agencies/dcbs/Pages/default.aspx.
STATUTORY AUTHORITY:
KRS
194A.050(1),
199.462(5),
199.640(5),
605.120(5),
(6),
605.130(7),
605.150