Dear Representative Iles:
You advise a question has arisen in your district concerning laws on the requirements or need for conducting criminal background checks on personnel involved with child care. Specifically, you ask whether such a check would be limited solely to paid personnel, or might additionally include volunteer personnel.
LSA-R.S. 46:51.2 allows such a check on both paid and volunteer personnel, and pertinently provides:
F. Any responsible officer or official, as the department may determine, of the following organizations may request the specified criminal history information:
(1) A child-caring institution, child-placing agency, maternity home, group home, or day care center all as defined in LSA-R.S. 46:1403; and
(2) Any other organization that the department determines, upon request of the organization, to have supervisory or disciplinary authority over children outside of the home to such extent that the department determines that the well-being and safety of children justifies giving the organization access to the specified criminal history information of those who work or have volunteered to work with the organization.
(3)(a) Any other child care provider organization with the prior written consent of the person whose criminal history information is being requested. As used in this Paragraph, the term "child care" means the provision of care, treatment, education, training, instruction, supervision, or recreation to children by persons having unsupervised access to a child. The check shall be conducted by the Department of Public Safety and Corrections, division of state police, for a reasonable fee established by the department. As used in this Paragraph, the term "provider" shall include a person who is employed by or volunteers with a child care provider organization. As used in this Paragraph, the term "child care provider organization" shall include but not be limited to "Big Brother/Sister" programs and scouting programs.
(b) The Department of Public Safety and Corrections, division of state police, shall not be liable in civil damages for failure to provide the criminal history checks requested nor shall the child care provider be liable in civil damages for failure to make such a request. (Emphasis added).
LSA-R.S. 46:1403 provides certain definitions and states:
(1) "Child" means a person has not reached age eighteen or otherwise been legally emancipated. The words "child" and "children" are used interchangeably in this Chapter.
(2) "Child-placing agency" means any institution, society, agency, corporation, facility, person or persons, or any other group engaged in placing children in foster homes or with substitute parents for temporary care or for adoption, but shall not mean a person who may occasionally refer children for temporary care.
(3) "Community home" means any place, facility, or home operated by any institution, society, agency, corporation, person or persons, or any other group which receives therein at least four but not more than six individuals, who are not related to the operator and whose parents or guardians are not residents of the same facility, for supervision, care, lodging, and maintenance, with or without transfer of custody.
(4) "Day care center" means any place or facility operated by an institution, society, agency, corporation, person or persons, or any other group for the primary purpose of providing care, supervision, and guidance of seven or more children not related to the care giver and unaccompanied by parent or guardian, on a regular basis for at least twenty hours in a continuous seven-day week. A day care center that remains open for more than twenty hours in a continuous seven-day week, and in which no individual child remains for more than twenty-four hours in one continuous stay shall be know as a full-time day care center. A day care center that remains open after 9:00 p.m. shall meet the appropriate regulations established for nighttime care. Day care center does not include a group child day care home as defined in LSA-R.S. 46:1441.1(A)(4), under a sponsoring agency, as defined in LSA-R.S. 46:1441.1(A)(5).
(5) "Department" means the Department of Health and Hospitals, with respect to facilities and agencies funded under Title XIX of the Social Security Act, and the Department of Social Services for all other facilities and agencies.
(6) "Group home" means any place, facility, or home operated by any institution, society, agency, corporation, person or persons, or any other group which receives therein at least seven but not more than fifteen children who are not related to the operators and whose parents or guardians are not residents of the same facility for supervision, care, lodging, and maintenance, with or without transfer of custody.
(7) "Maternity home" means any place or facility in which any institution, society, agency, corporation, person or persons, or any other group regularly receives and provides necessary services for children before, during, and immediately following birth. This definition shall not include any place or facility which receives and provides services for women who receive maternity care in the home of a relative within the sixth degree of kindred, computed according to civil law, or general or special hospitals in which maternity treatment and care is part of the medical services performed and the care of children only brief and incidental.
(8) "Residential home" means any place, facility, or home operated by any institution, society, agency, corporation, person or persons, or any other group to provide full-time care for more than fifteen children who are not related to the operators and whose parents or guardians are not residents of the same facility, with or without transfer of custody. A residential home as defined in this Paragraph includes facilities know as children's homes, halfway houses, residential treatment centers, training schools, and facilities for the mentally retarded, emotionally disturbed, socially maladjusted, or otherwise mentally or physically handicapped.
(9) "School", as referred to in LSA-R.S. 46:1415, means any institution or facility which provides for education of children in grades one or above. Any kindergarten or prekindergarten attached thereto shall be considered part of that school.
(B) For purposes of this Chapter "child care facility" shall include community homes, maternity homes, group homes, day care centers, and residential homes as defined in this Section.
Accordingly, it appears to be within the discretion of those organizations defined in LSA-R.S. 46:1403 to request the Department of Health and Hospitals to release such information. Note, however, that LSA-R.S. 46:51.2(F)(3)(b) removes liability and civil damages against a child care provider who fails to make such a request.
Should you have any further inquiries, please contact this office.
Very truly yours,
RICHARD P. IEYOUB ATTORNEY GENERAL
BY: KERRY L. KILPATRICK ASSISTANT ATTORNEY GENERAL
KLK:ams