TCA § 37-5-511 — Criminal violation information required of persons having access to children — Review of vulnerable persons registry — Verification — Exclusion from access to children

Each person: Applying to work with children as a paid employee with a child care agency as defined in § 37-5-501, or with the department in any position in which any significant contact with children is likely in the course of the person's employment; or A new volunteer who is expected to provide volunteer services in excess of twenty (20) hours per month in a child care agency, or with the department, in any position in which any significant contact with children is likely in the course of the person's volunteer status, shall complete a criminal history disclosure form in a manner approved by the department, and shall agree to release all records involving the person relating criminal history of such person to the child care agency and to the department for the purpose of verifying the accuracy of criminal violation information contained on the disclosure form required by this section. Such persons also shall submit to a criminal history records check to be conducted through the Tennessee bureau of investigation, shall supply fingerprint samples to the Tennessee bureau of investigation and to the federal bureau of investigation, and shall submit to a review of such person's status on the department of health's vulnerable persons registry under title 68, chapter 11, part 10; The disclosure forms shall include at a minimum the following information: The social security number of the applicant or volunteer; The complete name of the applicant or volunteer; Disclosure of information relative to any violations of the law, including pending criminal charges of any kind, and any conviction involving a sentence or suspended or reduced sentence and a release of all records involving the person's criminal background history; and A space for the applicant or volunteer to state any circumstances that should be considered in determining whether to allow the person to be employed or to remain as a resident in the agency or to provide volunteer services. The form shall notify the applicant or volunteer that falsification of required information may subject the person to criminal prosecution, and that the person's employment or volunteer status with the agency or the department is conditional pending a criminal records history review regarding the person's criminal history status. A copy of the disclosure form shall be maintained in the child care agency's records for review by the department, and the department shall maintain a copy of the disclosure form in the records of the applicant for employment or volunteer services with the department. The disclosure form shall be sent to the department by the child care agency and, pursuant to § 38-6-109, the department may directly access the computer files of the Tennessee bureau of investigation's Tennessee crime information center (T.C.I.C.) using only names or other identifying data elements contained in the disclosure form or such other information as may be available to the department to obtain available Tennessee criminal history background information for the purpose of criminal background reviews. If information obtained by this method indicates that there exists or may exist a criminal record on the individual, the department shall further review the criminal record history with the individual and the entity with whom the individual is associated to obtain further verification, and the department shall request fingerprint samples from the individual and submit the fingerprints for a complete Tennessee and federal criminal history background review pursuant to § 38-6-109. The department shall pay the costs of such fingerprint background checks pursuant to §§ 38-6-103 and 38-6-109. Pending the outcome of the background check, the applicant for employment or for a volunteer services position shall be conditional with the agency or with the department, and shall be dependent upon the outcome of the background check. The results of the inquiry to the Tennessee bureau of investigation shall be recorded in the applicant's or volunteer's records. If the information on the form appears to have been falsified, the Tennessee bureau of investigation shall report such finding to the department. The department shall notify, in writing, the appropriate district attorney general of such falsification. The agency, and the department for its employees and volunteers, shall utilize the information on the form to conduct an inquiry of the department of health's vulnerable persons registry pursuant to title 68, chapter 11, part 10, for a review of the person's status on such registry. The results of the inquiry to the registry shall be maintained in the applicant's or volunteer's records. Whether obtained by use of the procedures established in this section or whether such information is obtained by any other means, conviction of an offense, or a lesser included offense, or a finding in a juvenile proceeding, involving the physical, sexual or emotional abuse or gross neglect of a child or that constitutes conviction of an offense, or a finding in a juvenile proceeding, involving violence against a child, or any person, or conviction of an offense determined by the department, pursuant to properly promulgated rules, to present a threat to the health, safety or welfare of children, and any pending warrants, indictments or presentments, or pending juvenile proceedings, for such offenses or acts as a juvenile, as determined by rules of the department, or the identification of the individual on the department of health's vulnerable persons registry pursuant to title 68, chapter 11, part 10, shall disqualify the individual from employment with, as a licensee of a child care agency or from providing any volunteer services to children in, or from having any access whatsoever to children as a resident of, a child care agency as defined by this part, or with the department; provided, that the exclusionary provisions of this section shall not apply to children in the care, custody or control of the department. No person who is currently charged with or who has been convicted of or pled guilty to a violation of § 39-13-213, § 55-10-101, § 55-10-102 or § 55-10-401, or any felony involving use of a motor vehicle while under the influence of any intoxicant, may, for a period of five (5) years after the date of such conviction or felony plea, be employed as or serve as a driver transporting children for a child care agency. The child care agency, and the department for its employees, shall immediately exclude an individual from employment or volunteer services with children, if the results of the criminal background check or review of the vulnerable person's registry demonstrate to the agency, or upon review by the department demonstrate, that the criminal history of such individual is within the prohibited categories established in subdivision (d)(1). If an exemption from the exclusion is provided for by rule of the department pursuant to subsection (e), such person shall remain excluded until it is determined by the department whether there is a basis for an exception from the exclusion. The failure of a child care agency to exclude a person with a prohibited criminal history from employment with, or from the provision of volunteer services, or the failure, as determined by the department, to adequately restrict the access to children of a resident at a child care agency, shall subject the child care agency to immediate suspension of the agency's license by the department. Any person who is excluded based upon the results of the criminal history background review may appeal the exclusion to the department within ten (10) days of the mailing date of the notice of such exclusion to the subject person. If timely appealed, the department shall provide an administrative hearing pursuant to the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, part 3, in which the appellant may challenge the accuracy of the report, and may challenge the failure to grant an exception to the exclusion required by this subsection (d) if a rule for such purpose is promulgated by the department pursuant to subsection (e). The appellant may not collaterally attack the factual basis of an underlying conviction, except to show that the applicant is not the person identified on the record. Further, except to show that the applicant is not the person identified on the record, the appellant may not collaterally attack or litigate the facts that are the basis of a reported pending criminal charge, except to show that such charge was, or, since the report was generated, has been, dismissed, nolled or has resulted in an acquittal. The department may by rule promulgate standards of review for the purpose of considering exemptions from the criminal background exclusion established by this section. Nothing in this section shall be construed to prevent the exclusion of any individual from providing care for, from being licensed, approved or certified for the care of children pursuant to this part or from having access to a child in a child caring situation if the discovery of a criminal or juvenile proceeding background is discovered and verified in any manner other than through a procedure established pursuant to this section. All procedures, rules, and appeal processes established pursuant to this section for the protection of children and the due process rights of excluded individuals shall also be applicable to such individuals. It is unlawful for any person to falsify any information required on the disclosure form required by this section. A person who knowingly fails to disclose on the disclosure form required information or who knowingly discloses false information or who knowingly assists another to do so commits a Class A misdemeanor. The provisions of this section shall apply to detention centers and temporary holding resources described in § 37-5-109.