(1) The National Child Protection Act of 1993, as amended, (codified at 42 United States Code sections 5119a and 5119c) (the "Act") authorizes a state and national criminal history background check to determine the fitness of an employee, volunteer, or other person with unsupervised access to children, the elderly, or individuals with disabilities.  The background check contemplated herein shall be made pursuant to and with the support of the Act.  The purpose of this rule is to support the superintendent of public instruction's duty to evaluate a provider's moral and professional character and to determine whether a provider, as defined herein and in the Act, has been convicted of a crime that bears upon the provider's fitness to have responsibility for the safety and well being of children.

(2) As applied to the Act and used in this rule, the following definitions shall apply:

(a) "authorized agency" means the Montana office of public instruction;

(b) "identification document" means a document made or issued by or under the authority of the United States government, a state, political subdivision of a state, a foreign government, political subdivision of a foreign government, an international governmental or an international quasi-governmental organization which, when completed with information concerning a particular individual, is of a type intended or commonly accepted for the purpose of identification of individuals;

(c) "national criminal history background check" means a report generated from the criminal history record system maintained by the United States federal bureau of investigation based on fingerprint identification or any other method of positive identification;

(d) "provider" means those persons seeking educator licensure in Montana and listed in (3) ;

(e) "qualified entity" means the superintendent of public instruction.

(3) Except as otherwise provided for herein, each of the following persons (the "applicant") shall provide to the superintendent of public instruction information and material sufficient to obtain a fingerprint-based national criminal history background check (a "background check") :

(a) any applicant for initial Montana educator licensure;

(b) any person seeking emergency authorization of employment pursuant to 20-4-110, MCA and ARM 10.57.107; and

(c) any applicant seeking to reinstate a lapsed, revoked, or suspended educator license.

(4) The applicant shall bear the costs of the background check.

(5) The superintendent of public instruction shall not issue to an applicant a Montana educator license pursuant to 20-4-101, et seq., MCA, until the background check has been completed and the results of the background check have been delivered to and reviewed by the superintendent of public instruction.

(6) The superintendent of public instruction may accept the results of a background check conducted for the Montana university system or a private college or university in Montana of a student, provided the background check was completed no more than two years before the applicant submits a license application to the superintendent of public instruction.

(7) The superintendent of public instruction shall not request a background check of a provider hereunder unless the provider first provides a set of fingerprints and completes and signs a statement that:

(a) contains the name, address, and date of birth appearing on a valid identification document of the provider;

(b) the provider has not been convicted of a crime and, if the provider has been convicted of a crime, contains a description of the crime and the particulars of the conviction;

(c) notifies the provider that the entity may request a background check hereunder;

(d) notifies the provider of the provider's rights under (8) ; and

(e) notifies the provider that prior to the completion of the background check the qualified entity may choose to deny the provider unsupervised access to a person to whom the qualified entity provides care.

(8) Each provider who is the subject of a background check is entitled to:

(a) obtain a copy of any background check report; and

(b) challenge the accuracy and completeness of any information contained in any such report and obtain a prompt determination as to the validity of such challenge before a final determination is made by the authorized agency.

(9) The authorized agency shall:

(a) upon receipt of a background check report lacking disposition data, conduct research in whatever state and local record keeping systems are available in order to obtain complete data; and

(b) make a determination whether the provider has been convicted of, or is under pending indictment for, a crime that bears upon the provider's fitness to have responsibility for the safety and well being of children, the elderly, or individuals with disabilities and shall convey that determination to the qualified entity.

(10) Conviction, including conviction following a plea of nolo contendere, a conviction in which the sentence is suspended or deferred, or any other adjudication treated by the court as a conviction, may be considered by the superintendent of public instruction in the certification process if the conviction was for a sexual offense, a crime involving violence, the sale of drugs, or theft, or any other crime meeting the criteria of Title 37, chapter 1, part 2, MCA.

(11) This rule shall be effective for persons applying for licensure on or after January 1, 2003.