71-1912. Department; investigation; inspections; national criminal history record information check; procedure; cost; background checks; person ineligible for employment; when.
1,726 words·~8 min read·
/ne/chapter-71/71-1912A research copy — for the controlling text, always check the official state or federal source. Not legal advice.
(1)Before issuance of a license, the department shall investigate or cause an investigation to be made, when it deems necessary, to determine if the applicant or person in charge of the program meets or is capable of meeting the physical well-being, safety, and protection standards and the other rules and regulations of the department adopted and promulgated under the Child Care Licensing Act. The department may investigate the character of applicants and licensees, any member of the applicant's or licensee's household, and the staff and employees of programs. The department may at any time inspect or cause an inspection to be made of any place where a program is operating to determine if such program is being properly conducted.
(2)All inspections by the department shall be unannounced except for initial licensure visits and consultation visits. Initial licensure visits are announced visits necessary for a provisional license to be issued to a family child care home I, family child care home II, child care center, or school-age-only or preschool program. Consultation visits are announced visits made at the request of a licensee for the purpose of consulting with a department specialist on ways of improving the program.
(3)An unannounced inspection of any place where a program is operating shall be conducted by the department or the city, village, or county pursuant to subsection
(2)of section 71-1914 at least annually for a program licensed to provide child care for fewer than thirty children and at least twice every year for a program licensed to provide child care for thirty or more children. At each unannounced inspection, the inspector shall request from the licensee, and verify, current proof of required liability insurance. If the licensee is unable to provide current proof of liability insurance or has let the required coverage lapse, the department shall notify the licensee that proof of insurance shall be provided to the department within three business days. If such proof of insurance is not provided to the department within three business days, the licensee's license shall be suspended. Licensure shall be restored upon the department's receipt and verification of current proof of the required liability insurance as provided in section 71-1911.03 .
(4)Whenever an inspection is made, the findings shall be recorded in a report designated by the department. The public shall have access to the results of these inspections upon a written or oral request to the department. The request must include the name and address of the program. Additional unannounced inspections shall be performed as often as is necessary for the efficient and effective enforcement of the Child Care Licensing Act.
(5)(a) A person applying for a license as a child care provider or a licensed child care provider under the Child Care Licensing Act shall submit a request for a national criminal history record information check for each child care staff member, including a prospective child care staff member of the child care provider, at the applicant's or licensee's expense, as set forth in this section.
(b)(i) A prospective child care staff member shall submit to a national criminal history record information check
(A)prior to employment, except as otherwise permitted under 45 C.F.R. 98.43, as such regulation existed on January 1, 2019, or
(B)prior to residing in a family child care home.
(ii)Pursuant to 45 C.F.R. 98.43(d)(4), the department shall authorize a prospective child care staff member to begin work for a child care provider for purposes of employment in child care, or for a staffing agency or substitute child care staff pool operator, for the purposes of employment in child care as a substitute child care staff member, after receiving qualifying results for either
(A)a Federal Bureau of Investigation fingerprint check or
(B)a state criminal registry or repository check with the use of fingerprints, for the state where the staff member resides. Pending completion of all background check components, the staff member shall be supervised at all times by an individual who received a qualifying result on a background check described in this subsection
(5)within the past five years.
(c)(i) The department shall provide documentation of national criminal history record information checks which proves eligibility for employment. Such documentation shall be made available to each child care staff member or prospective child care staff member by the applicant or licensee for at least one hundred eighty days after the last day of employment or date the documentation was provided by the department, whichever is later.
(ii)Pursuant to 45 C.F.R. 98.43(d)(3), a child care provider, staffing agency, or substitute child care staff pool operator shall not be required to submit a request for a national criminal history record information check for a child care staff member or prospective child care staff member if:
(A)The child care staff member or prospective child care staff member received qualifying results from a background check described in subdivisions (5)(d) and (5)(e) of this section:
(I)Within five years before the latest date on which such a submission may be made; and
(II)While employed, or seeking employment, in child care within the state;
(B)The department provided to the first child care provider, staffing agency, or substitute child care staffing pool operator a qualifying background check result for the child care staff member or prospective child care staff member; and
(C)The child care staff member or prospective child care staff member is employed in child care within the state, or has been separated from employment in child care within the state, for a period of not more than one hundred eighty consecutive days.
(d)A child care staff member shall be required to undergo a national criminal history record information check not less than once during each five-year period. A child care staff member shall submit a complete set of his or her fingerprints to the Nebraska State Patrol. The Nebraska State Patrol shall transmit a copy of the child care staff member's fingerprints to the Federal Bureau of Investigation for a national criminal history record information check. The national criminal history record information check shall include information concerning child care staff members from federal repositories of such information and repositories of such information in other states, if authorized by federal law for use by the Nebraska State Patrol. The Nebraska State Patrol shall issue a report to the department that includes the information collected from the national criminal history record information check concerning child care staff members. The department shall seek federal funds, if available, to assist child care providers and child care staff members with the costs of the fingerprinting and national criminal history record information check. If the department does not receive sufficient federal funds to assist child care providers and staff members with such costs, then the child care staff member being screened, applicant for a license, or licensee shall pay the actual cost of the fingerprinting and national criminal history record information check, except that the department may pay all or part of the cost if funding becomes available. The department and the Nebraska State Patrol may adopt and promulgate rules and regulations concerning the costs associated with the fingerprinting and the national criminal history record information check. The department may adopt and promulgate rules and regulations implementing national criminal history record information check requirements for child care providers and child care staff members.
(e)A child care staff member shall also submit to the following background checks at his or her expense not less than once during each five-year period:
(i)A search of the National Crime Information Center's National Sex Offender Registry; and
(ii)A search of the following registries, repositories, or databases in the state where the child care provider is located or where the child care staff member resides and each state where the child care provider was located or where the child care staff member resided during the preceding five years:
(A)State criminal registries or repositories;
(B)State sex offender registries or repositories; and
(C)State-based child abuse and neglect registries and databases.
(f)Documentation of eligibility for employment in child care from a national criminal history record information check shall be portable between child care providers, child care staff members, prospective child care staff members, staffing agencies, and substitute child care staff pool operators.
(g)Any individual shall be ineligible for employment by a child care provider if such individual:
(i)Refuses to consent to the national criminal history record information check or a background check described in this subsection;
(ii)Knowingly makes a materially false statement in connection with the national criminal history record information check or a background check described in this subsection;
(iii)Is registered, or required to be registered, on a state sex offender registry or repository or the National Sex Offender Registry; or
(iv)Has been convicted of a crime of violence, a crime of moral turpitude, or a crime of dishonesty.
(h)The department may adopt and promulgate rules and regulations for purposes of this section.
(i)A child care provider shall be ineligible for a license under the Child Care Licensing Act and shall be ineligible to participate in the child care subsidy program if the provider employs a child care staff member who is ineligible for employment under subdivisions
(g)or
(h)of this subsection.
(j)National criminal history record information and information from background checks described in this subsection subject to state or federal confidentiality requirements may only be used for purposes of granting a child care license or approving a child care provider for participation in the child care subsidy program.
(k)For purposes of this subsection:
(i)Child care provider means a child care program required to be licensed under the Child Care Licensing Act; and
(ii)Child care staff member means an individual who is not related to all of the children for whom child care services are provided and:
(A)Who is employed by a child care provider for compensation, including contract employees or self-employed individuals;
(B)Whose activities involve the care or supervision of children for a child care provider or unsupervised access to children who are cared for or supervised by a child care provider; or
(C)Who is residing in a family child care home and who is eighteen years of age or older.