110 CMR 18.11 - Provisions for Review of a Candidate in any Discretionary Category

(1) Each candidate for whom the CORI investigation reveals a "lifetime presumptive disqualification", who has otherwise met the requirements for further consideration set forth in 110 CMR 18.10, or a "discretionary disqualification" shall, unless the hiring authority has decided to withdraw the conditional offer of a position, receive additional review by the hiring authority to determine if the candidate poses an unacceptable risk of harm to the persons served by the program within the position sought. In reviewing the candidate's appropriateness for employment given the concern for client safety, due weight shall be given to the following factors:

(a) Time since the conviction;

(b) Age of the candidate at the time of the offense;

(c) Seriousness and specific circumstances of the offense;

(d) The nature of the work to be performed;

(e) The number of offenses;

(f) Any relevant evidence of rehabilitation or lack thereof;

(g) Any other relevant information, including information submitted by the candidate or requested by the hiring authority.

Information considered pursuant to 110 CMR 18.11(1)(g) may include documentation from the candidate's criminal justice official, if not already supplied pursuant to 110 CMR 18.10(1), or treating professional or other knowledgeable source, such as, the police, courts, or prosecuting attorneys.

(2) Following the review, the hiring authority shall determine whether:

(a) To hire the candidate based upon a determination that the candidate does not pose a danger to the program's clients; or

(b) To not hire the candidate;

Nothing herein shall be construed as preventing the hiring authority from deciding not to hire the candidate for any other reason.

(3) If a decision is made to hire the candidate, the hiring authority shall make a written determination of such decision, documenting the considerations outlined in 110 CMR 18.11(1)(a) through (g), and the rationale for the conclusion that the candidate does not pose a danger to the program's clients within the position sought.

(4) The hiring authority shall submit such written determination to the Department immediately upon a decision to hire the individual.

(a) If the candidate has been convicted of or has a pending charge for any of the crimes listed in 110 CMR 18.16: Table A and B, the biting authority shall not proceed to hire the individual for five business days during which time the Commissioner may, after review of the determination, disapprove the hire.

(b) If the candidate has been convicted of or has a pending charge for any of the crimes listed in 110 CMR 18.16: Table C, the hiring authority may proceed to hire the individual, unless the provisions of 110 CMR 18.11(6) apply.

(5) The Department shall conduct an annual review of such written determinations for candidates with crimes listed in 110 CMR 18.16: Table C to ensure compliance with the requirements of 110 CMR 18.09, 18.10, and 18.11.

(6) Based on the annual review pursuant to 110 CMR 18.11(5) or other relevant information obtained by the Department that raises concerns about the hiring authority's compliance with these requirements, the Department may required the hiring authority to submit such written determinations prior to hiring the individual. The Commissioner shall have five business days following receipt of the determination to disapprove the hire. The Department may require the hiring authority to follow such prior review process for as long a period as it determines is necessary to ensure that the hiring authority is complying with the requirements of 110 CMR 18.09, 18.10, and 18.11.

(7) In the case of a foster/pre-adoptive parent, 110 CMR 18.11(1), (2) and (3) shall apply as if the foster/adoptive parent was a candidate for a position.

(8) In the case of a foster/pre-adoptive parent who is being considered or has been approved and/or licensed by the Department, the Department shall proceed in accordance with its policy in meeting the requirements of 110 CMR 18.11(4), (5) and (6).

In the case of a foster/pre-adoptive parent who is being considered or has been approved and/or licensed by the Department vendor agency program and will be used as a placement for a child in Department care or custody, the Department vendor agency must proceed in accordance with the Department's policy and procedures on back ground record checks in meeting the requirements of 110 CMR 18.11(4), (5) and (6).

(9) In reviewing a request for an individual to serve as a kinship foster/pre-adoptive parent pursuant to 110 CMR 18.10(1) the Commissioner, Deputy Commissioner for Field Operations and General Counsel must find:

(a) That the prospective foster/pre-adoptive parent, or any household member, does not present a risk of harm to the child based on the existence of a criminal conviction;

(b) That the conviction did not involve a crime against or involving a child;

(c) That the foster/pre-adoptive parent has a pre-existing relationship and bond with the child;

(d) That the foster/pre-adoptive parent agrees to submit to an assessment by a qualified mental health professional within 30 days of placement; and

(e) That the Department has reviewed the enumerated factors set forth in 110 CMR 18.11(1) in determining that it is in the best interests of the child to be placed with the kinship foster/pre-adoptive parent notwithstanding the existence of a criminal conviction that would otherwise disqualify them.

(10) In reviewing a misdemeanor crime for any foster/pre-adoptive parent the Department shall consider at a minimum the following:

(a) the time that has elapsed between the date of the offense and the date of the screening, assessment or reassessment;

(b) The seriousness and specific circumstances of the offense;

(c) The number and nature of other offenses;

(d) The age of the offender at the time at the time of the offense;

(e) The findings and recommendations of the family resource worker assigned by the Department to discuss the facts surrounding the misdemeanor with the foster/pre-adoptive parent;

(f) The recommendations given to the family resource worker by personal or employment references chosen by the foster/pre-adoptive parent or received otherwise;

(g) The current and future needs of the child to be placed and the probable effect that the misdemeanor would have on the foster/pre-adoptive parent's ability to fulfill those needs;

(h) Any reports or recommendations received by the Department from the foster/pre-adoptive parent's parole or probation officer should one have been assigned;

(i) A copy of the police report pertaining to the offense in question if obtainable within a reasonable period of time or discussions with a police officer familiar with the facts surrounding the offense; and

(j) Unless inappropriate, discussions with the child to be placed regarding his/her current and past relationship with the foster/pre-adoptive parent.

Nothing in 110 CMR 18.11(7), (8) or (9) shall be construed as preventing the Department or a vendor agency program from deciding not to approve or license a foster/pre-adoptive home for any other reason.

Notes

110 CMR 18.11