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HOUSE DOCKET, NO. 1909 FILED ON: 1/18/2023
HOUSE . . . . . . . . . . . . . . . No. 434
The Commonwealth of Massachusetts
_________________
PRESENTED BY:
Natalie M. Blais
_________________
To the Honorable Senate and House of Representatives of the Commonwealth of Massachusetts in General
Court assembled:
The undersigned legislators and/or citizens respectfully petition for the adoption of the accompanying bill:
An Act establishing employee screening requirements in schools to prevent child sexual abuse.
_______________
PETITION OF:
NAME:DISTRICT/ADDRESS :DATE ADDED:Natalie M. Blais1st Franklin1/18/2023Carmine Lawrence Gentile13th Middlesex1/25/2023Vanna Howard17th Middlesex1/30/2023 1 of 13
HOUSE DOCKET, NO. 1909 FILED ON: 1/18/2023
HOUSE . . . . . . . . . . . . . . . No. 434
By Representative Blais of Deerfield, a petition (accompanied by bill, House, No. 434) of
Natalie M. Blais, Carmine Lawrence Gentile and Vanna Howard for legislation to establish
employee screening requirements in schools to prevent child sexual abuse. Education.
The Commonwealth of Massachusetts
_______________
In the One Hundred and Ninety-Third General Court
(2023-2024)
_______________
An Act establishing employee screening requirements in schools to prevent child sexual abuse.
Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority
of the same, as follows:
1 SECTION 1. Chapter 71 of the General Laws, as appearing in the 2014 Official Edition,
2is hereby amended by inserting after Section 38R the following new section:-
3 Section 38R1/2. Screening of prospective school employees for prior investigations into
4child abuse or sexual misconduct.
5 For the purposes of this section, the following definitions shall apply:-
6 “Child abuse” means the non-accidental commission of any act by a caregiver which
7causes or creates a substantial risk of physical or emotional injury or sexual abuse of a child or
8student; or the victimization of a child or student through sexual exploitation, regardless if the
9person responsible is a caretaker.
10 “Sexual misconduct” means any verbal, nonverbal, written, or electronic communication,
11or any other act directed toward or with a student that is designed to establish a sexual 2 of 13
12relationship with the student, including a sexual invitation, dating or soliciting a date, engaging
13in sexual dialogue, making sexually suggestive comments, self-disclosure or physical exposure
14of a sexual or erotic nature, and any other sexual, indecent or erotic contact with a student.
15 (a) A school district, charter school, nonpublic school, or contracted service provider
16holding a contract with a school district, charter school, or nonpublic school may not offer
17employment to an applicant who would be employed by or work in a school in a position which
18involves direct or regular contact with students, unless the school district, charter school,
19nonpublic school, or contracted service provider requires the applicant to provide:
20 (1) A list, including name, address, telephone number and other relevant contact
21information of the applicant, including:
22 (i) Current employer;
23 (ii) All former employers that were school entities;
24 (iii) All former employers if the applicant was employed in positions that involved direct
25contact with children.
26 (2) A written authorization that consents to and authorizes disclosure by the applicant's
27current and former employers.
28 (3) A written statement of whether the applicant:
29 (i) has been the subject of (A) an abuse or sexual misconduct investigation by any
30employer, State licensing agency, law enforcement agency, unless the investigation resulted in a
31finding that the allegations were false or inconclusive; or (B) an investigation of abuse under
32section 51A of chapter 119 in which the allegations of abuse against the applicant were 3 of 13
33substantiated by the department of children and families and not subsequently unsubstantiated or
34overturned on appeal;
35 (ii) has ever been disciplined, discharged, non-renewed, asked to resign from
36employment, resigned from or otherwise separated from any employment (A) while allegations
37of abuse or sexual misconduct were pending or under investigation, unless the investigation
38resulted in a finding that the allegations were false or inconclusive, or in the case of section 51A
39of chapter 119, unsubstantiated; or (B) due to an adjudication or findings of abuse or sexual
40misconduct.; or
41 (iii) has ever had a license, professional license or certificate suspended, surrendered or
42revoked (A) while allegations of abuse or sexual misconduct were pending or under
43investigation, unless the investigation resulted in a finding that the allegations were false or
44inconclusive, or in the case of section 51A of chapter 119, unsubstantiated; or (B) due to
45adjudicated findings of abuse or sexual misconduct.
46 (b) Before a school or contracted service provider may offer employment to an applicant
47who would be employed by or work in a school in a position involving direct or regular contact
48with children, the school or contracted service provider shall conduct a review of the
49employment history of the applicant by contacting those employers listed by the applicant and
50requesting the following information:
51 (1) The dates of employment of the applicant.
52 (2) A statement as to whether the applicant: 4 of 13
53 (i) was the subject of (A) an abuse or sexual misconduct investigation by any employer,
54State licensing agency, law enforcement agency, unless such investigation resulted in a finding
55that the allegations were false or inconclusive; or (B) an investigation of abuse under section
5651A of chapter 119 in which the allegations of abuse against the applicant were substantiated by
57the department of children and families and not subsequently unsubstantiated or overturned on
58appeal.
59 (ii) was disciplined, discharged, non-renewed, asked to resign from employment,
60resigned from or otherwise separated from any employment (A) while allegations of abuse or
61sexual misconduct were pending or under investigation, unless the investigation resulted in a
62finding that the allegations were false or inconclusive or, in the case of section 51A of chapter
63119, unsubstantiated; or (B) due to an adjudication or findings of abuse or sexual misconduct; or
64 (iii) has ever had a license, professional license or certificate suspended, surrendered or
65revoked while allegations of abuse or sexual misconduct were pending or under investigation, or
66due to adjudicated findings of abuse or sexual misconduct.
67 (c) Before a school or contracted service provider may offer employment to an applicant
68who would be employed by or in a school entity in a position involving regular contact with
69children, the school entity or contracted service provider shall check the eligibility for
70employment or certification status of the applicant to determine whether the applicant holds valid
71and active certification appropriate for the position and is otherwise eligible for employment and
72whether the applicant has been the subject of professional discipline. 5 of 13
73 (d) An applicant who provides false information or willfully fails to disclose material
74required information shall be subject to discipline up to, and including, termination or denial of
75employment and may be subject to professional discipline.
76 (e) No later than 120 days after receiving a request for information under subsection (b),
77an employer that has or had an employment relationship with the applicant shall disclose the
78information requested. The employer shall disclose the information on a standardized form
79developed by the department of elementary and secondary education.
80 (f)(1) After reviewing the information initially disclosed under subsection (a)(2) and
81finding an affirmative response to subsection (a)(2)(i), (ii) or (iii), or disclosed under section (b)
82and finding an affirmative response to subsection (b)(2)(i), (ii) or (iii), where the prospective
83employing school or contractor makes a determination to consider the applicant for employment,
84the school or contractor shall request that former employers provide any additional material
85information about the matters disclosed. The applicant shall provide written authorization that
86consents to and authorizes disclosure by the applicant's current and former employers of said
87additional material information.
88 (2) Former employers shall provide the additional information requested no later than 90
89days after the prospective employer's request under this paragraph.
90 (3) Information received under this section shall not be deemed a public record for the
91purposes of section 10 of chapter 66.
92 (4) A school that receives the information under this subsection shall use the information
93solely for the purpose of evaluating an applicant's fitness to be hired or for continued
94employment. 6 of 13
95 (g) A school or independent contractor may hire an applicant on a provisional basis for
96no more than 90 days pending the school entity's or independent contractor’s review of
97information and records received under this section, provided that all of the following are
98satisfied:
99 (1) the applicant has provided all of the information and supporting documentation
100required;
101 (2) the school administrator has no knowledge of information pertaining to the applicant
102that would disqualify the applicant from employment; and
103 (3) the applicant swears or affirms that the applicant is not disqualified from employment.
104 (h) A school or contractor may not enter into a collective bargaining agreement, an
105employment contract, an agreement for resignation or termination, a severance agreement or any
106other contract or agreement or take any action that interferes with the operation of section 51A of
107chapter 119 or appropriate criminal authority. Any provision of an employment contract or
108agreement for resignation or termination or a severance agreement that is executed, amended or
109entered into after the effective date of this section and that is contrary to this section shall be
110void.
111 (1) Any individual who is a school employee, contractor, or agent, or any State
112educational agency or local educational agency, shall be prohibited from assisting a school
113employee, contractor, or agent in obtaining a new job in another educational agency or school,
114apart from the routine transmission of administrative and personnel files, if the individual or
115agency knows, or has probable cause to believe, that such school employee, contractor, or agent
116engaged in sexual misconduct regarding a minor or student in violation of the law. 7 of 13
117 (2) Exception- The requirements of subsection (a) shall not apply if the information
118giving rise to probable cause:
119 (i) has been properly reported to a law enforcement agency with jurisdiction over the
120alleged misconduct; and has been properly reported to any other authorities as required by
121Federal, State, or local law, including title IX of the Education Amendments of 1972 (20 U.S.C.
1221681 et seq.) and the regulations implementing such title under part 106 of title 34, Code of
123Federal Regulations, or any succeeding regulations; and
124 (ii) the matter has been officially closed or the prosecutor or police with jurisdiction over
125the alleged misconduct has investigated the allegations and notified school officials that there is
126insufficient information to establish probable cause that the school employee, contractor, or
127agent engaged in sexual misconduct regarding a minor or student in violation of the law;
128 (iii) the school employee, contractor, or agent has been charged with, and acquitted or
129otherwise exonerated of the alleged misconduct; or
130 (iv) the case or investigation remains open and there have been no charges filed against,
131or indictment of, the school employee, contractor, or agent within 4 years of the date on which
132the information was reported to a law enforcement agency.
133 (v)(A) For substitute employees, the employment history review required by this section
134shall be required only prior to the initial hiring of a substitute or placement on the school entity's
135approved substitute list and shall remain valid as long as the substitute continues to be employed
136by the same school entity or remains on the school entity's approved substitute list. 8 of 13
137 (B) A substitute seeking to be added to another school entity's substitute list shall
138undergo a new employment history review. The appearance of a substitute on one school entity's
139substitute list does not relieve another school entity from compliance with this section.
140 (C) An employment history review conducted upon initial hiring of a substitute employee
141by an contracted service provider, intermediate unit or any other entity that furnishes substitute
142staffing services to school entities shall satisfy the requirements of this section for all school
143entities using the services of that independent contractor, intermediate unit or other entity.
144 (D) A contracted service provider, intermediate unit or any other entity furnishing
145substitute staffing services to school entities shall comply with the provisions of this Act.
146 (E) For purposes of this subsection, "substitute employee" shall not mean school bus
147drivers employed by a contracted service provider.
148 (j)(1) For employees of contracted service providers, the employment history review
149required by this section shall be performed either at the time of the initial hiring of the employee
150or prior to the assignment of an existing employee to perform work for a school entity in a
151position involving regular contact with children. The review shall remain valid as long as the
152employee remains employed by that same contractor even though assigned to perform work for
153other school entities.
154 (2) A contracted service provider shall maintain records documenting employment
155history reviews for all employees as required by this section and, upon request, shall provide a
156school entity for which an employee is assigned to perform work access to the records pertaining
157to that employee. 9 of 13
158 (3) Prior to assigning an employee to perform work for a school in a position involving
159regular contact with children, the contracted service provider shall inform the school of any
160instance known to the contractor in which the employee:
161 (i) was the subject of any abuse or sexual misconduct investigation by any employer,
162State licensing agency, law enforcement authority or child protective services agency, unless
163such investigation resulted in a finding that allegations are false;
164 (ii) has ever been disciplined, discharged, non-renewed, removed from a substitute list,
165asked to resign from employment, resigned from or otherwise separated from any employment
166while allegations of abuse or sexual misconduct as described in subparagraph (i) were pending or
167under investigation, or due to an adjudication or findings of abuse or sexual misconduct; or
168 (iii) has ever had a license, professional license or certificate suspended, surrendered or
169revoked while allegations of abuse or sexual misconduct were pending or under investigation, or
170due to an adjudication or findings of abuse or sexual misconduct.
171 (4) The independent contractor may not assign the employee to perform work for the
172school in a position involving direct contact with children where the school objects to the
173assignment after being informed of an instance of abuse or sexual misconduct.
174 (5) An applicant who has once undergone the employment history review required and
175seeks to transfer to or provide services to another school in the same district, diocese or religious
176judicatory or established and supervised by the same organization shall not be required to obtain
177additional reports before making such transfer. 10 of 13
178 (k) (1) An employer, school, school administrator or independent contractor who in good
179faith provides information or records including personnel records about a current or former
180employee’s job performance and professional conduct to a prospective school employer or to the
181department of elementary and secondary education shall be immune from criminal and civil
182liability for the disclosure or any consequences of the disclosure, unless the information or
183records were provided with the knowledge that they were false or misleading. Such immunity
184shall be in addition to and not in limitation of any other immunity provided by law or any
185absolute or conditional privileges applicable to such disclosures by virtue of the circumstances or
186the applicant's consent thereto.
187 (2) Except where the laws of other states prevent the release of the information or records
188requested, or disclosure is restricted by the terms of a contract entered into prior to the effective
189date of this section, the willful failure of a former employer, school entity, school administrator
190or independent contractor to respond or provide the information and records as requested may
191result in civil penalties, and professional discipline where appropriate.
192 (3) Notwithstanding any provision of law to the contrary, an employer, school, school
193administrator, independent contractor or applicant shall report and disclose in accordance with
194this section all relevant information, records and documentation that may otherwise be
195confidential under section 10 of chapter 66.
196 (4) A school or independent contractor may not hire an applicant who does not provide
197the information required under subsection (a)(2) for a position involving contact with children.
198 (l) Nothing in this section shall be construed: 11 of 13
199 (1) To prevent a prospective employer from conducting further investigations of
200prospective employees or from requiring applicants to provide additional background
201information or authorizations beyond what is required under this section, nor to prevent a former
202employer from disclosing more information than what is required under this section.
203 (2) To relieve a school, school administrator or independent contractor of its legal
204responsibility to report suspected incidents of abuse in accordance with the provisions of section
20551A of chapter 119 or misconduct by a licensed educator in accordance with the reporting
206requirements of the department of elementary and secondary education.
207 (3) To relieve a school, school administrator or independent contractor of its legal
208responsibility to report suspected incidents of professional misconduct in accordance with
209chapter 119, section 51A or misconduct by a licensed educator in accordance with the reporting
210requirements of the department of elementary and secondary education.
211 (4) To prohibit the right of the exclusive representative pursuant to chapter 150E to
212challenge the validity of an employee’s termination or discipline under a collective bargaining
213agreement or any relevant statute
214 (m)(1) The office of the attorney general shall have jurisdiction to determine willful
215violations of this section and may, following a hearing, assess a civil penalty not to exceed ten
216thousand dollars ($10,000). School entities shall be barred from contracting with an independent
217contractor who is found to have willfully violated the provisions of this section. Willful
218violations of the provisions of this section shall be reported to the relevant licensing authority.
219 (2) Notwithstanding any other provision of law to the contrary, the department of
220elementary and secondary education shall report all willful violations of the provisions of these 12 of 13
221sections to the National Association of State Directors of Teacher Education and Certification
222Clearinghouse or any national databases serving the same purpose, all information required for
223participation in such a clearinghouse.
224 (3) The Department of Education shall notify each school district and school about the
225provisions of this act to ensure applicants and employers are aware of their respective rights and
226responsibilities under this act. The department shall develop standardized forms for applicants
227and employers to use to comply with the requirements of subsection (a) of this act, as well as any
228other informational materials that may assist applicants and employers in the implementation of
229and compliance with this act.
230 (4) The board of education may promulgate regulations for implementation and
231enforcement of this chapter. Upon release of the proposed regulations, the board shall file a copy
232of the regulations with the clerks of the house of representatives and the senate, who shall
233forward the regulations to the joint committee on education. Within 30 days of the filing, the
234committee may hold a public hearing and issue a report on the regulations and file the report
235with the board. The board, pursuant to applicable law, may adopt final regulations making
236revisions to the proposed regulations as it deems appropriate after consideration of the report and
237shall file a copy of the final regulations with the chairpersons of the joint committee on education
238and, not earlier than 30 days after the filing, the board shall file the final regulations with the
239state secretary.
240 (5) No employer shall be liable for injury, loss of property, personal injury or death
241caused by an act or omission of a public employee while acting in the scope of the public 13 of 13
242employee’s employment and arising out of the implementation of this chapter. This chapter shall
243not be construed as creating or imposing a specific duty of care.