31 DE Code § 309. (2021)
2021 Delaware Code|Title 31 - Welfare|Chapter 3. Child Welfare|Subchapter I. General Provisions|§ 309. Background checks for child-serving entities and other organizations.

§ 309. Background checks for child-serving entities and other organizations. (a) A background check for employees or volunteers of child-serving entities and members of school boards shall consist of a fingerprinted Delaware and national background check completed by the State Bureau of Identification (SBI) and the Federal Bureau of Investigation (FBI) as well as a Child Protection Registry check completed by the Department of Services for Children, Youth and Their Families (DSCYF). (b) Definitions. — For purposes of this section:  (1) “Administrator of educator preparation program” means the individual identified by the higher education institution as being responsible for overseeing the placement of candidates into student teaching placements in a Delaware public school. (2) “Adult who is impaired” shall have the meaning as defined in § 3902 of this title. (3) “Child Protection Registry” as used in this section, shall have the meaning as defined in § 921 of Title 16. (4) “Child-serving entity” means:  a. The DSCYF, which includes any employee or volunteer of DSCYF or 1 of its contractors who have regular direct access to children or adolescents under the age of 18, but who do not provide child-care services at a facility under paragraph (b)(4)b. of this section. b. Residential child-care facilities in Delaware which are under contract with or operated directly by DSCYF. c. Public and private schools, including employees of the Department of Education. d. Child-care providers as defined in § 3002A of Title 14. e. Youth camps or summer schools that are exempt from child-care licensing requirements. f. Facilities and individuals registered and eligible for Federal Child Care Development Block Grant funds through the Delaware Department of Health and Social Services. g. Early intervention service providers as defined under § 3103A of Title 14. (5) “Contractor” means a person, not an employee, providing services or seeking a contract to provide services within a child-serving entity and any of the following apply to the person:  a. Has regular direct access to children. b. Provides services directly to a child or children. (6) “Conviction” or “convicted” shall have the same meaning as defined in § 902 of Title 16. (7) “Direct access” means the opportunity to have personal, unsupervised contact with persons receiving care or education during the course of one's assigned duties. (8) “Elderly person” shall have the meaning as defined in § 222 of Title 11. (9) “Employee” means any person seeking employment for compensation with a child-serving entity, or any person who for any reason has regular direct access to children at a child-serving entity. This definition shall also include applicants wishing to become adoptive, foster, or respite parents and their adult household members and any person seeking a student teaching placement in a public school. (10) “Felony convictions involving physical or sexual assault crimes” shall include: §§ 604-607, 612-613, 626, 629-636, 645, 651, 768-780, 782-783A, 785, 787, 802, 803,1100A-1102, 1103A-1103B, 1105, 1108-1112B of Title 11, felony convictions of § 1136 of Title 16, and felony convictions of § 3913(c) of Title 31. (11) “Higher education institution” means a Delaware college or university that has a teacher preparation program that places candidates into student teaching placements in a Delaware public school. (12) “Member of a school board” means a candidate, prospective, or current member of the State Board of Education, or the board of a public school district, vocational-technical school district, or charter school. (13) “Misdemeanor convictions against children” shall include: §§601-603, 611, 621, 625-628A,763, 764, 765, 766, 767, 781, 785, 1102, 1103, 1106, 1107 of Title 11 , and misdemeanor convictions of § 1136 of Title 16. (14) “Private school” means a school having any or all of grades kindergarten through 12, operating under a board of trustees and maintaining a faculty and plant which are properly supervised. (15) “Public school” means any public school and includes any board of education, school district, reorganized school district, special school district, charter school or charter school board and any person acting as an agent thereof. (16) “Student teacher” means an individual participating in a student teaching placement. (17) “Student teaching placement” means a structured, supervised classroom teaching, internship, clinical or field experience in a teacher education program in which the student teacher practices the skills being learned in the teacher education program and gradually assumes increased responsibility for instruction, classroom management, and other related duties for a class of students in a local school district or charter school. These skills are practiced under the direct supervision of the certified teacher who has official responsibility for the class. Successful completion of a student teaching placement may be used to meet the requirements for an initial license set forth in § 1210 of Title 14. (18) “Volunteer” means a person providing volunteer services within a child-serving entity and who has regular direct access to children. (19) “Youth camp” means a child-serving entity having custody or control of 1 or more school-age children, unattended by parent or guardian, for the purpose of providing a program of recreational, athletic, educational and/or religious instruction or guidance and operates for up to 12 weeks for 3 or more hours per day, during the months of May through September or some portion thereof, or during holiday breaks in the course of a school year and is operated in a space or at a location other than a space or location subject to licensing pursuant to§ 3004A of Title 14. (c) Except as provided in paragraph (c)(4) of this section, all child-serving entities are required to obtain criminal and Child Protection Registry checks for prospective employees, volunteers, and contractors. Members of school boards must obtain criminal and Child Protection Registry checks under § 209 or § 511 of Title 14.  (1) The SBI shall furnish information pertaining to the identification and criminal history record of prospective employees, volunteers, and contractors of child-serving entities, and members of school boards, except as otherwise allowed or required, provided that the prospective board member, employee, volunteer, or contractor submits to a reasonable procedure established by standards set forth by the Superintendent of State Police to identify the person whose record is sought. This procedure must include the fingerprinting of the individual subject to a criminal background check and the provision of such other information as may be necessary to obtain a report of the individual's entire criminal history record from SBI and a report of the individual's entire federal criminal history record under the FBI appropriation of Title II of Public Law 92-544. Notwithstanding any provision to the contrary, the information to be furnished by SBI shall include child sex abuser information. The Division of State Police shall be the intermediary for purposes of this section. (2) Any person who is required to request a Child Protection Registry check under this section shall obtain a statement signed by the prospective board member, employee, volunteer, or contractor wherein the individual authorizes a full release for the person to obtain the information provided as a result of a check. The DSCYF will process a Child Protection Registry check of the individual upon receipt of the signed statement which shall be attached to the request from the person for the Child Protection Registry check. (3) Notwithstanding paragraph (c)(1) of this section, private schools and youth camps may choose to perform a name-based Delaware criminal background check for prospective employees, volunteers and contractors through the Delaware Justice Information System (DELJIS) and an out-of-state criminal record check using private, third-party providers of such checks, provided that any out-of-state criminal record check shall include a Social Security trace search and county-based criminal record search in the counties in which the individual has resided within the past 10 years. Such check shall be valid for a 5-year period. (4) Any private school, including youth camps directly operated by a private school, may choose not to perform the background checks and Child Protection Registry checks described in paragraphs (c)(1) and (c)(2) of this section, provided that the private school or youth camp that is directly operated by the private school informs parents or guardians of the youth in attendance that the school or youth camp is not meeting minimum background check safety requirements for its staff members. The school or camp must obtain and retain for at least 1 year a signed acknowledgement of same from the parents or guardians. (5) Costs associated with obtaining said criminal history information and Child Protection Registry information are borne by the applicant, except for applicants designated in paragraph (b)(4)d. of this section, whose costs are borne by the State. Notwithstanding the foregoing:  a. Public schools may use funds other than state funds to pay for criminal background check costs and may enter into consortia of school districts to pay such costs for persons covered by this section who work in more than 1 school district during the course of a year. b. A candidate for election to a school board may use campaign funds to pay for background check costs under § 1075 of Title 14. (6) All employees, volunteers, and contractors shall inform their employer of any criminal conviction or entry on the Child Protection Registry which would lead to a prohibition under subsection (d) of this section. (7) Child-serving entities may conditionally hire an employee or volunteer or place a child, pending the determination of suitability for employment. If the information obtained from the background checks indicates that the individual is prohibited from employment pursuant to subsection (d) of this section, the person may not continue in employment and is subject to termination. (8) Any persons or organization whose primary concern is that of child welfare and care, which is not otherwise required to do so under the provisions of this section may voluntarily submit to the provisions of this subchapter at such person's or organization's expense pursuant to procedures established by the Superintendent of State Police. (d) Prohibitions. — (1) The following criminal convictions or entries on the Child Protection Registry shall prohibit an individual from being an employee, volunteer, or contractor for a child-serving entity for the amount of time indicated:  a. Felony convictions involving physical or sexual assault crimes against a child, an adult who is impaired, or elderly person. Such convictions shall require a lifetime prohibition. b. Felony convictions involving physical or sexual assault crimes against another adult. Such prohibition shall last for 10 years following the date of conviction. c. Any other convictions for a violent felony as defined in § 4201(c) of Title 11 not already included within the convictions subject to a lifetime or 10 year prohibition under paragraphs (d)(1)a. and b. of this section shall prohibit the individual for 7 years following the date of conviction, unless the felony is included within the crimes that can lead to entry on the Child Protection Registry pursuant to § 923 of Title 16, in which case the length of time for the prohibition shall be as provided in the Child Protection Registry regulations. d. Misdemeanor convictions against children. Such prohibitions shall last for 7 years following the date of conviction, unless the misdemeanor is included within the crimes that can lead to entry on the Child Protection Registry pursuant to § 923 of Title 16, in which case the length of time for the prohibition shall be as provided for in the Child Protection Registry regulations. (2) If an individual has more than 1 prohibition, the higher level prohibition shall apply. (3) For any other criminal conviction that does not prohibit employment according to paragraph (d)(1) of this section, the child-serving entity may set forth job-related prohibitions for employees, contractors, and volunteers considering number and types of offenses, their recency, the individual's criminal record since the offenses, and the responsibilities of the position which the individual has obtained or is seeking to obtain, provided that such prohibitions are not otherwise prohibited by law. (4) The child-serving entity may prohibit employment for longer than that set out in paragraph (d)(1) of this section for those crimes that are prohibited and are job-related. The prohibition must not be shorter than the time proscribed in paragraph (d)(1) of this section, provided such time restrictions are not otherwise prohibited by law. (e) Upon completion of the criminal background and Child Protection Registry checks:  (1) Where the child-serving entity is a public or private school, a contractor with a school district or the Department of Education, or an employee of a contractor who is an early intervention service provider:  a. 1. The SBI shall provide the criminal background information and DSCYF shall provide the Child Protection Registry check information to the individual and the employing or contracting school or school district or if applicable, a contractor employing the individual.  2. The school, school district, or employing contractor shall determine whether the individual is prohibited from being employed by or contracting with the school, school district, or contractor under subsection (d) of this section. If the individual is not prohibited from employment by subsection (d) of this section but the individual has a criminal conviction or is on the Child Protection Registry, the school or district shall make a determination regarding suitability for employment or contracting using the factors in paragraph (d)(3) of this section. 3. Information obtained under this subsection is confidential and may only be disclosed to any of the following, as applicable:  A. The chief school officer. B. The head of school. C. The employing contractor. D. The chief personnel officer of the school or school district. E. One person in each school or school district who is designated to assist in the processing of criminal background checks, receive training in confidentiality, and is required to sign an agreement to keep such information confidential. b. Upon making its determination of suitability, the public school shall forward the determination to the person seeking employment or a contract. If a determination is made to deny the person employment or a contract based on the criminal history of the person, the person shall have an opportunity to appeal to the chief school officer or head of school or designee for reconsideration. c. In the case of a student teacher:  1. The SBI shall provide the criminal background information and DSCYF shall provide the Child Protection Registry check information to the individual and to the Higher Education Institution identified by the individual, through the Administrator of Educator Preparation Program. The Higher Education Institution shall determine whether the individual is prohibited from being employed pursuant to subsection (d) of this section and shall send a copy of the complete criminal background check and Child Protection Registry check information to the district superintendent or charter school director of the Delaware school district or charter school considering the person as a candidate for a student teaching position. If the individual is not prohibited from employment by subsection (d) of this section but the individual has a criminal conviction or is or has been on the Child Protection Registry, the school or district shall make a determination regarding suitability for employment using the factors in paragraph (d)(3) of this section. Information obtained under this subsection is confidential and may only be disclosed to the chief school officer or head of school and the chief personnel officer of the school, and 1 person in each school who shall be designated to assist in the processing of criminal background checks, receive training in confidentiality and be required to sign an agreement to keep such information confidential. 2. Upon making its determination of suitability, the public school shall forward the determination to the administrator of educator preparation program of the designated higher education institution. (2) Where the child-serving entity is DSCYF, a residential child-care facility under contract to or operated directly by DSCYF, or where the individual is applying to become an adoptive, foster or respite parent, SBI shall provide the criminal background information to DSCYF and DSCYF shall perform the Child Protection Registry check. DSCYF shall determine whether or not the individual is prohibited based on the results of the criminal background and Child Protection Registry checks. DSCYF may, by regulation, set forth criteria for unsuitability for its employees, contractors, volunteers, residential child-care employees, individuals applying to become an adoptive, foster or respite parent. These criteria shall relate to criminal history information and other information in addition to that set forth above. Such criteria and information shall be reasonably related to the prevention of child abuse. Upon making its determination, the DSCYF shall forward the determination to the applicant and the employer. Any adverse judgment affecting the applicant may be reviewed subject to regulations promulgated by DSCYF. The State Bureau of Identification may release all subsequent criminal history to DSCYF. (3) Where the child-serving entity is a child-care provider, facility receiving Federal Child Care Development Block Grant funds, or a Youth Camp, SBI shall provide the criminal background information to DSCYF, and DSCYF shall perform the Child Protection Registry check. DSCYF shall determine whether or not the individual is prohibited by subsection (d) of this section based on the results of the criminal background and Child Protection Registry checks. If the applicant has a criminal conviction or is on the Child Protection Registry but is not prohibited from employment pursuant to paragraph (d)(1) of this section, DSCYF will assess the background check information and make a determination of suitability based upon factors set forth by DSCYF regulation consistent with paragraph (d)(3) of this section. If an applicant is determined unsuitable by DSCYF, the employer shall be informed. The employer shall make the final determination of whether or not to employ the individual. Notwithstanding the above, if the employer is a family child-care provider, DSCYF shall make the final decision based on the criteria established by regulations. If an applicant is determined unsuitable by DSCYF, the applicant and employer shall be informed. Any adverse judgment affecting the applicant shall be reviewed subject to regulations promulgated by the DSCYF. SBI may release all subsequent criminal history to DSCYF. (4) Where the child-serving entity is a private school or youth camp that chooses to perform background checks using the method permitted in paragraph (c)(3) of this section, DELJIS shall perform a name-based criminal check based on the identifying information provided by the private school or youth camp. If the individual is found to have a criminal background that would make them prohibited for employment, DELJIS shall so inform the employer. If the individual's background would not make them prohibited from employment, then DELJIS shall forward the information to DSCYF, which shall perform a check of the Child Protection Registry. DSCYF shall determine whether or not the individual is prohibited based on the results of the Child Protection Registry check. (5) a. When the background checks are for a member of a school board, the SBI shall provide the criminal background information and DSCYF shall provide the Child Protection Registry check information pertaining to members and prospective members within 15 days of a request under subsection (c) of this section as follows:  1. To the Governor, for an individual seeking appointment to or serving on the State Board of Education or a vocational-technical school district. 2. To the Commissioner of Elections, for an individual seeking to be a candidate for election to a school board. 3. To the superintendent of a school district, for an individual serving as a member of the school district board. 4. To the board of a charter school, for an individual seeking to serve or serving on the charter school board. b. Information provided under paragraph (e)(5)a. of this section is confidential and is not a public record under Chapter 100 of Title 29. (f) The DSCYF shall, in the manner provided by law, promulgate regulations necessary to implement this section. (g) The Department of Education shall, in the manner provided by law, promulgate regulations necessary to implement this section. These regulations shall include all of the following:  (1) Establishment, in conjunction with SBI, of a procedure for fingerprinting persons seeking employment with a public school or as an early intervention service provider and providing the reports and certificate obtained under subsection (c) of this section. (2) Establishment of a procedure to provide confidentiality of information obtained under subsection (c) of this section. (3) Establishment of a procedure for determining other job-related prohibitions for employees, volunteers, and contractors, under paragraph (d)(3) of this section.67 Del. Laws, c. 409, §  1;  79 Del. Laws, c. 290, §  202;  80 Del. Laws, c. 154, §  1;  80 Del. Laws, c. 211, §§ 1, 2;  81 Del. Laws, c. 433, § 1;  82 Del. Laws, c. 184, §§   2, 3;  83 Del. Laws, c. 187, § 7;  83 Del. Laws, c. 213, § 8;