Findings from Fingerprint-based Checks - Crimes Subject to Review

(1) Before any determination is made regarding a candidate's suitability for employment, licensing, funding, or approval on the basis of a fingerprint-based check of the state and national criminal history databases, the Department shall: (a) provide the candidate with a copy of the report with the findings of the fingerprint-based check, DDS's National Criminal Background Check regulations, and the DCJIS's information concerning the process for correcting a criminal record; (b) inform the candidate of the potential for an adverse decision based on the findings of the fingerprint-based check; (c) inform the candidate what part of the criminal record appears to make him or her unsuitable for employment, licensing, funding, or approval; (d) provide the candidate with an opportunity to submit additional information relevant to the review of his/her criminal history; (e) provide the candidate with an opportunity to dispute the accuracy and relevancy of the fingerprint-based check; and (e) upon receipt of any additional documentation, review the information with the candidate and inform him or her of the decision. (2) If the fingerprint-based check reveals a conviction of an offense from any jurisdiction that is the same or similar offense to a 101 CMR 15.15: Tables of Offenses: Table A crime, regardless of when it occurred, or a pending 101 CMR 15.15: Tables of Offenses: Table A crime, or a conviction of an offense from any jurisdiction that is the same or similar to a 101 CMR 15.15: Tables of Offenses: Table B crime within the five and ten-year periods referenced in 115 CMR 12.08, or a pending 101 CMR 15.15: Tables of Offenses: Table B crime, the CBCU will give careful consideration to the following factors in its determination of suitability for hiring, licensing, funding, or approval: (a) time since the conviction or pending offense; (b) age of the candidate at the time of the offense; (c) nature and specific circumstances of the offense; (d) sentence imposed and length of any period of incarceration; (e) relationship of the criminal act to the nature of the work to be performed; (f) number of offenses; (g) whether the offenses were committed in association with a dependence on drugs or alcohol, from which the candidate has since recovered; (h) any relevant evidence of rehabilitation or lack thereof, such as information about compliance with conditions of parole or probation, including orders of no contact with victims and witnesses; and the individual's conduct and experience since the time of the offense, including but not limited to educational or professional certifications obtained; and (i) any other relevant information, including information submitted by the candidate, or requested by the hiring authority. (3) As part of its consideration of a candidate's suitability for hiring, licensure, funding or approval, the CBCU may: (a) rely upon the hiring authority's certification that it conducted a CORI background investigation of the candidate and complied with all applicable requirements of 101 CMR 15.00: Criminal Offender Record Checks for any offense that was reviewed as part of the 101 CMR 15.00: Criminal Offender Record Checks CORI investigation, and (b) require the candidate obtain and submit any documentation that will assist the CBCU in giving careful consideration to the candidate's suitability for hiring, licensure, funding or approval in accordance with 115 CMR 12.09. (4) The CBCU, using a standardized form prescribed by the Department, will make a written determination of its decision regarding consideration of the candidate's suitability for hiring, licensing, funding, or approval. A copy of the written determination will be maintained by the CBCU in a secure location, together with any additional information regarding the candidate obtained during the background investigation. (5) If the CBCU approves as suitable for hiring, licensing, funding, or approval a candidate whose fingerprint-based check show a conviction of, or pending offense that is the same or similar to a 101 CMR 15.15: Tables of Offenses: Table A crime, the CBCU shall: (a) submit its written determination to the Commissioner or designee(s) and not proceed to give their approval for five business days from the date the Commissioner or designee(s) receives the written determination. During such time the Commissioner or designee(s) may disapprove the candidate's approval or request additional information. Notwithstanding the foregoing, the CBCU may proceed with their approval before the expiration of the five-day period if the Commissioner or designee(s), after receiving the written determination, informs the CBCU that he or she does not intend to disapprove the candidate's approval or request additional information. (b) the CBCU may, as part of the background investigation require a candidate submit: 1. a review by the candidate's criminal justice official, including a determination in writing that the candidate, under the circumstances or within the position sought, does not pose an unacceptable risk of harm to Department clients; or 2. if the criminal justice official is unavailable or has indicated he or she has insufficient information to render an assessment, a written determination from a qualified mental-health professional that the candidate, under the circumstances or within the position sought, does not pose an unacceptable risk of harm to Department clients. If the Department makes such a request, DDS will bear the cost of an assessment by a qualified mental-health professional of the candidate's risk of harm. 3. if a candidate obtained a written determination from a qualified mental-health professional or criminal justice official as part of the CORI background investigation pursuant to 101 CMR 15.00: Criminal Offender Record Checks, the CBCU may rely on such written determination for crimes reviewed as part of the 101 CMR 15.00: Criminal Offender Record Checks CORI investigation. 4. the CBCU will include any written determinations from a criminal justice official or mental-health professional among the factors considered in its rationale for assessing a candidate's suitability for employment, licensing, funding, or approval. (6) If the Department does not wish to approve a candidate with a conviction or pending offense that is the same or similar to a 101 CMR 15.15: Tables of Offenses: Table A crime, regardless of when it occurred, or a conviction or pending offense that is the same or similar to a 101 CMR 15.15: Tables of Offenses: Table B crime within the five and ten-year periods referenced in 115 CMR 12.08, the prescribed form documenting the rationale will be completed as outlined in 115 CMR 12.09(4) and will be maintained on file in a secure location.