(Cross-posted from The COFAR Blog)
A new national criminal background check law in Massachusetts may well have a major, positive impact on services and care for people with developmental disabilities in the state.
But under the law, the background check requirement is delayed for many, if not most, current employees in the Department of Developmental Services system for more than four years, until January 2019. The requirement is delayed for a year and a half for prospective employees in the system.
The long-awaited law, which was signed by Governor Patrick last week, authorizes national criminal background checks for persons hired to work in an unsupervised capacity with persons with developmental disabilities. The law will ultimately require that both current and prospective caregivers in the system submit their fingerprints to a federal database maintained by the FBI. The law applies to DDS employees, employees of corporate service providers to the department, and caregivers over the age of 15 of persons living at home.
Up to now, persons hired to care for clients in the DDS system have had to submit only to an in-state criminal background check, which identifies only criminal arrests and convictions in Massachusetts, and does not identify any convictions a job applicant might have from another state. A national background check system will fill in that potential gap in the applicant’s history.
The new law’s fingerprint requirements, however, will be phased in through January 2019 for current employees, and will not take effect for new employees until January 2016. Another provision in the new law that raises questions appears to allow employees to be hired before the results of their background checks are obtained. That provision states the following:
Department-licensed, funded or approved programs and providers of transportation services on behalf of any department-licensed, funded or approved program may hire individuals without first obtaining the results of a state and national fingerprint-based criminal history check (my emphasis).
It’s not entirely clear to us what the intent of this provision is or what its impact might be. It appears to allow people to be hired before they are cleared through the FBI database. The provision does not specify a time frame for obtaining the background check results after an individual is hired.
Does this provision mean that even after January 2019, someone could be hired by DDS or a provider and could work for weeks or possibly months with developmentally disabled people before their background results are obtained or before their backgrounds are even checked? Furthermore, does the provision allow for that leeway even for in-state background checks?
I contacted the staff of the Legislature’s Judiciary Committee earlier this week to ask about that provision and the provisions phasing in the background check requirements until 2016 and 2019. It was apparently in the Judiciary Committee that these provisions were inserted. Interestingly, the Judiciary Committee staff person I talked to referred me to Philip Johnston Associates, a Beacon Hill lobbying firm, which was apparently involved in the final negotiations over the bill, apparently on behalf of DDS corporate providers.
On Tuesday, I spoke to a member of the Johnston Associates firm, who said she was unsure as well about the intent of the provision that appears to allow the hiring of individuals prior to checking their backgrounds, and that she would get back to me. I have not yet heard back from her. I also placed two calls on Monday and Tuesday to the state Department of Criminal Justice Information Services, which is in charge of administering the law. I have yet to get a return call from that department.
The Johnston Associates staff member said the providers and other advocates involved in negotiations over the background check legislation pushed for phasing in the fingerprint requirements due to concerns over the time needed to implement them. A member of the Association of Developmental Disabilities Providers expressed a concern in a news article last week that the new fingerprint requirements could prove burdensome to smaller provider agencies.
It is not clear to us though that more than four years is really needed to phase in the national background check program for current employees in the DDS system, or that a year-and-a-half delay is needed before requiring new employees to be fingerprinted. We’re skeptical that that much time is needed, partly because we’ve witnessed a lack of urgency on the part of both the Legislature and the administration for the past several years in just getting this law passed. It seems possible that that lack of urgency is being carried over into implementing the law’s requirements.
National background check legislation had been proposed each year for up to a decade by then Representative Martin Walsh, now mayor of Boston, before it was finally enacted this year. Each year, the legislation would get stuck in either the Judiciary or House Ways and Means Committees, or both, and then would die at the end of the session. The administration did little during that time to lobby for passage of the measure. As a result, Massachusetts has been only one of a handful of states without a national background check program for people with developmental disabilities.
Meanwhile, the federal government has stood ready to assist the state with grant money under the Affordable Care Act to help implement the new background check law; but Massachusetts has declined to apply for that federal money, which has available since 2010. The state has even been slow to implement national background checks for school teachers and children’s day care providers.
While we’re glad to see that the DDS national background check bill is finally law, we hope the administration now shows a true commitment and sense of urgency in getting it to work.
National background checks for providers to persons with developmental disability are long overdue in Massachusetts, and the delay in implementation is not appropriate. Just yesterday the governor signed us into the national database for gun permits, and no delay was mentioned on that one. When I was working for COFAR (disclosure moment: I worked on staff 2007-9 and have since been a professional member as a direct care paraprofessional in the mental health system, seeing some persons living with developmental disability who also have behavioral health issues), the governor actually took a step backwards by refusing to exempt workers from CORI reform (generally a good thing in my opinion) which erased certain offenses from one’s background check after 5 or 10 years. The governor went so far as to make this an executive order for state employees (thus affecting DDS employees) many months before the legislature passed the law for everyone else.
The delay in the bill is surprising because this is not an issue on which advocates are openly split — national background checks are also a national priority for the ARC. I would be curious if providers lobbied via the Association of Developmental Disabilities Providers, an ARC affiliate, or the broader Provider’s Council (Massachusetts Council of Human Service Providers, Inc.)
Either or both have made a convenient but dangerous amendment, in that transportation providers are historically the weak link as the pay is low, the jobs are entry level and poorly vetted, and this is where much abuse of disabled persons takes place. It is odd that people driving typically developing teenagers on a school bus are checked out more thoroughly than those driving vulnerable adults with intellectual disability. Those who wonder why some guardians are so adamant about keeping IFC-level facility care a choice for their loved ones have to consider that at a well-designed congregate facility, living space, jobs, day programming, dental, and medical attention are all on the same campus, and thus there is no getting on and off “the van” nor time alone with the van driver.
The other odd provision of the law is the fingerprinting and registration of family caregivers. Given that most DDS clients live with family (half with parents over 60), this is a lot of regulation for people who have already given up a lot of their own independence to commit to a loved one with disability. Presumably this will only apply to family members receiving some kind of stipend from the department, but even so, it may be a “poison pill,” designed with the delay to rally family members against the national background checks altogether and get providers off the bureaucratic hook.
As one who has a lot of respect for the good providers out there, who value existing screens and want to avoid abusive or neglectful workers, I regret that they allowed their “business-minded” colleagues to dilute and delay a much-needed reform. Perhaps it will work out and eventually the national checks will catch a few bad apples, and this bill will be seen as a first step. But I fear that the inserted language, especially as applied to family caregivers, may turn it into a self-roasting turkey.
It’s unclear exactly what role Johnston Associates played in this whole thing. Their lobbying disclosure form at the Secy. of State’s office doesn’t appear to list the ADDP or the Arc as clients of theirs.
I’m not quite clear on your reference to the transportation providers. Are you referring to the provision in the new law that appears to allow employees to be hired prior to background checks? That provision mentions transportation providers, but it also mentions all DDS licensed or funded programs.
Great point about the caregivers at home. Maybe there should be an exemption for family members.
A one and a half to four year wait. Background checks have only been a priorty for the ARC in the last few years because they have been backed into the corner by other advocacy groups on the state and federal levels.
It is also clear the ARC is running the Department of Developmental Services. There is no justification for a 4 year phase in period for exsisting employees, unless they know something we don’t know. Around the country the longest phase in period has been 2 years and that was not acceptable.
Hiring someone prior to getting back the background check is complete craziness. Talking about putting the fox in the chicken coup!!!
When it comes right down to it, it is very evident where people with ID/DD and their saftey falls on list. As we have just seen again it is not very high.
have been running the show since DP became governor. Background checks are nearly the industry standard these days, so what gives, Massachusetts? Why would anyone think a delay was a) good for the residents and b)a good idea anyway? The only ones balking are the vendors and their lobbyists. Imagine if background checks were deferred for teachers, coaches and others? Please. Evidently it’s still A-OK to put people with intellectual disabilities at risk.