TCA § 49-5-413 — Investigation of applicants for teaching or child care positions

Except as provided by subsection (f), and in addition to the requirements of § 49-5-406, a local board of education, charter school, or any child care program as defined in § 49-1-1102, shall require that prior to employment, and at least every five (5) years thereafter, any person applying for or holding a position as a teacher or any other position requiring proximity to school children or to children in a child care program to: Agree to the release of all investigative records to the board or child care program for examination for the purpose of verifying the accuracy of criminal violation information as required by § 49-5-406(a)(1)(A); and Supply a fingerprint sample and submit to a criminal history records check to be conducted by the Tennessee bureau of investigation and the federal bureau of investigation. Any retired teacher applying for a position as a teacher in accordance with title 8, chapter 36, part 8 shall not be required to comply with this section if the application is being made to the local board of education from which the teacher retired. Any reasonable costs incurred by the Tennessee bureau of investigation in conducting the investigation of an applicant shall be paid by the applicant the first time the applicant applies for a position with a local board of education or a child care program. The applicant shall be provided a copy of all criminal history records check documentation provided to the local board of education or child care program to which the applicant first applies. In lieu of additional criminal history records checks for subsequent applications, the applicant may submit copies of the applicant's initial criminal history records check documentation and shall not be required to pay any additional costs. Any local board of education or child care program may reimburse the applicant for the costs of the investigation if the applicant accepts a position as a teacher or any other position requiring proximity to school children or children in a child care program. Any local board of education or child care program may establish a policy authorizing payments for investigations of an applicant who provides school maintenance, clean up, food service and other such functions other than administrative or teaching functions or duties. A local board of education or child care program may pay for an investigation of the applicant regardless of whether the applicant accepts an offer for employment with the board of education or child care program. Any person, corporation or other entity that enters into or renews a contract, or contracts with any person, corporation, or other entity that enters into or renews a contract, with a school, local board of education or child care program as defined in § 49-1-1102, on or after May 30, 2008, shall be required to comply with this subsection (d) if the contract requires: The person or an employee of the person, corporation or other entity to have direct contact with school children or to children in a child care program; or The person or employee to have access to the grounds of a school or child care center when children are present. Any person, corporation or other entity that, on or after September 1, 2007, but prior to May 30, 2008, entered into or renewed an applicable contract or contracts with a school, local board of education or child care program as defined in § 49-1-1102, and the contract remains in effect on May 30, 2008, shall be governed by this subsection (d) as it existed prior to May 30, 2008. However, all parties to any such contract may agree to come within this subsection (d), even if the contracts were entered into or renewed prior to May 30, 2008. It is the duty of the person, corporation or other entity that employs a person described in subdivision (d)(1) to require the applicant to supply a fingerprint sample and submit to a criminal history records check to be conducted by the Tennessee bureau of investigation and the federal bureau of investigation prior to permitting the person to have contact with the children or enter school grounds. If the person, corporation or other entity is an out-of-state employer, the requirements of subdivision (d)(2)(A) are satisfied if the employer presents proof that a criminal history records check that is comparable to that required by subdivision (d)(2)(A) has been conducted on the employee described in subdivision (d)(1). To qualify as a comparable criminal history records check, it must include a fingerprint-based criminal history records check that is conducted by the federal bureau of investigation. Notwithstanding subdivision (d)(2)(A), a person, corporation or entity that, for one (1) employee, satisfies the requirements of this subsection (d) for one (1) school, one (1) local board of education or one (1) child care program shall be deemed to have satisfied the requirements for any other school, board of education or child care program, as long as the employee remains in the continuous employment of the same person, corporation or entity. Notwithstanding subdivision (d)(2)(A), a person, corporation or other entity that, for one (1) contract, satisfies the requirements of this subsection (d) shall be deemed to have satisfied the requirements of this subsection (d) for any subsequent contract, as long as the employee servicing or working on that contract remains in the continuous employment of the same person, corporation or entity. No employer, or employee of the employer to whom this subsection (d) applies, shall come in direct contact with school children or with children in a child care program or enter the grounds of a school or child care center when children are present until the criminal history records check has been conducted on the person. No employer, or employee of the employer to whom this subsection (d) applies, shall come in direct contact with school children or with children in a child care program or enter the grounds of a school or child care center when children are present if the criminal history records check indicates that the employer or employee has ever been convicted of any of the following offenses, or the same or similar offense in any jurisdiction, including convictions for the solicitation of, attempt to commit, conspiracy, or acting as an accessory to: A sexual offense or a violent sexual offense as defined in § 40-39-202; Any offense in title 39, chapter 13; §§ 39-14-301 and 39-14-302; §§ 39-14-401 — 39-14-404; §§ 39-15-401 and 39-15-402; § 39-17-417; § 39-17-1320; or Any other offense in title 39, chapter 17, part 13. If an employee is convicted of any of the offenses in subdivision (d)(3)(B) after the employer has conducted a criminal history records check on the employee, the employee shall notify the employer of the conviction within seven (7) days from the date of conviction. An employee commits a Class A misdemeanor, punishable by fine only, who knowingly fails to disclose to the employer within seven (7) days as required under subdivision (d)(3)(C)(i) that the employee has been convicted of an offense specified in subdivision (d)(3)(B). This subsection (d) shall only apply if the employer or employee of the employer comes in direct contact with school children, children in a child care program or enters the grounds of a school or child care center when children are present during the ordinary course of performing a function required or permitted by the terms of the contract. Any action involving direct contact or entry by an employee that is outside the ordinary course of performing a function required or permitted by the terms of the contract shall not in any way be deemed to be authorized or approved by the employer and the employer shall not in any way be deemed to be liable for the contact or entry, vicariously or otherwise. However, nothing in this subsection (d) shall authorize contact or entry by an employer or employee of the employer if contact or entry is prohibited by any other law; provided, that, with respect to the contact or entry, the person, corporation or other entity that employs a person described in subdivision (d)(1) shall not in any way be deemed to be liable, vicariously or otherwise, for any actions taken by the employee, unless the employer has actual knowledge that the other law prohibits contact or entry by an employee. This subsection (d) shall not apply to: Government personnel engaged in law enforcement, medical or emergency health services; Utility personnel, where utility means any entity created or authorized by law to provide electricity, gas, water, wastewater services or telecommunications services or any combination of these services; Delivery or pick-up service providers where those services involve only scheduled visits under the supervision of school personnel; or A person whose contract is for the performance of a service at a school-sponsored activity, assembly, or event at which school officials or employees are present when the service is performed and where the activity, assembly, or event is conducted under the supervision of school officials or employees; provided, however, that this exception shall not apply to persons engaged or contracted to referee or officiate an interscholastic athletic event unless said person has undergone a satisfactory background check as a condition of registration for work as an official for interscholastic athletic contests. Nothing in this subsection (d) shall be construed to prevent any person, corporation or other entity that employs a person described in subdivision (d)(1) from directly receiving, upon payment of the appropriate fee, information indicating whether the employee meets or does not meet the criteria set out in this subsection (d). The department of education, the state board of education, local boards of education, and LEAs are prohibited from hiring or retaining any individual whom the department of children's services has found to have committed child abuse, severe child abuse, child sexual abuse, or child neglect pursuant to title 37, except that no individual or employee shall be reported as a perpetrator by the department of children's services unless the department of children's services has determined that the due process rights of the individual or employee were either offered but not accepted, or were fully concluded, pursuant to the department of children's services rules and regulations and state and federal law. Any individual who is currently employed with, or has been conditionally offered employment with, the department of education, any local board of education, or any LEA, and has ever been found by the department of children's services to have committed child abuse, severe child abuse, child sexual abuse, or child neglect, shall be offered due process rights. Once the due process rights of the individual or employee have either been offered but not accepted, or have been fully concluded and the finding upheld, the department of children's services shall disclose such finding to the department of education, local board of education, or LEA. If an individual is currently employed with, or has been conditionally offered employment with, the department of education, any local board of education, or any LEA, and the department of children's services has ever found the individual to have committed child abuse, severe child abuse, child sexual abuse, or child neglect, but the due process rights of the individual or employee have not yet been offered or are still pending, the department of children's services shall conduct an emergency file review to determine if the individual poses an immediate threat to the health, safety, or welfare of children. If the emergency file review results in a finding that the individual poses an immediate threat to the health, safety or welfare of children, the department of children's services shall disclose the threat to the department of education, local board of education, or LEA. If an individual is currently employed with, or has been conditionally offered employment with, the department of education, any local board of education, or any LEA, and the department of children's services has commenced an investigation of the individual that has not yet been concluded, the department of children's services shall conduct an emergency file review to determine if the individual poses an immediate threat to the health, safety, or welfare of children. If the emergency file review results in a finding that the individual poses an immediate threat to the health, safety or welfare of children, the department of children's services shall disclose the threat to the department of education, local board of education, or LEA. If due process proceedings have been stayed due to a pending criminal charge against an individual who is currently employed or has been conditionally offered employment by the department of education, any local board of education, or any LEA, the department of children's services shall notify the department of education, local board of education, or LEA of the pending criminal charge. The department of education, the state board of education and the department of children's services, in consultation, shall develop a procedure whereby local boards of education or LEAs may submit to the department of children's services the names of current employees and individuals who have been conditionally offered employment with the local board of education or LEA, to determine if the employee or individual has been found by the department of children's services to have committed child abuse, severe child abuse, child sexual abuse, or child neglect, or to pose an immediate threat to the health, safety, or welfare of children. Upon submission by the local board of education or LEA of the names of current employees and individuals who have been conditionally offered employment, the department of children's services shall timely provide the local board of education or LEA with the information in subdivisions (e)(2)-(5). The department of education, local board of education, and LEAs shall not hire or retain any individual whose name has been placed on the state's vulnerable person's registry or the state's sex offender registry. The department of children's services shall have authority to promulgate as emergency rules the procedures described in subdivisions (e)(2)-(5) and shall promulgate such rules within sixty (60) days of May 14, 2013. Upon Tennessee's acceptance into the federal bureau of investigation rap back program, local boards of education, charter schools, and any child care programs, as defined in § 49-1-1102, shall conduct state and national criminal history record checks on the personnel identified in subsection (a) and shall participate in the rap back program to determine suitability or fitness for employment. Local boards of education, charter schools, and child care programs shall notify applicants and employees who are subject to a criminal history record check pursuant to this section that the Tennessee bureau of investigation may charge a reasonable fee for the criminal history record checks performed and that applicant and employee fingerprints will be retained by the Tennessee bureau of investigation and the federal bureau of investigation for all purposes and uses authorized for fingerprint submissions. The criminal history record check shall include the submission of fingerprints to: The federal bureau of investigation for a national criminal history record check; and The Tennessee bureau of investigation for a state criminal history record check that shall include nonconviction data. Each local board of education and each governing body of a charter school shall adopt a policy governing background check procedures for contract workers and volunteers. Upon Tennessee's acceptance into the federal bureau of investigation rap back program, local boards of education, charter schools, and any child care program, as defined in § 49-1-1102, may require state and national criminal history record checks to be conducted on contract workers and school volunteers, and may participate in the rap back program, for the purpose of determining suitability or fitness for contract workers and volunteers to work with children or to be on school grounds when children are present.