Paul Blume's Columns - A hassle for schools; a bonanza for lawyers (August 2009)

Employees suspected of child maltreatment can be placed on DHS’ central registry without a hearing. Getting removed from the registry is much harder.

In some previous columns over the years, I’ve expressed my less-than-enthusiastic regard for some of the doings of the Department of Human Services, usually having to do with corporal punishment. Regardless, it almost always came down to a school employee being placed on the “central registry,” and why.

Well, the Legislature, in Act 1173 of 2009, has extended the reach and effect of that list of purported maltreaters of children. (And no, I don’t know whether “maltreaters” is a real word.)

My main problem with the central registry is not that it exists, but that it’s too easy to get on it. It only takes a single report of suspected abuse, filed by anyone, to trigger an investigation by State Police working with DHS. If those investigators confirm a reasonable basis for believing that “child maltreatment” occurred, then they and/or DHS can place a person on the supposedly confidential list without a hearing. Removing someone from the list, on the other hand, does require a hearing. I’ve actually gone to court with DHS to remove someone from the registry who, in my humble opinion, should not have been placed there in the first place. The court agreed with me, by the way.

Okay, with all that off my chest, Act 1173 of 2009 sets up the registry as a hurdle to employment the same way we already use criminal background checks. (Remember, though, that criminal background checks relate to a person’s actual convictions of criminal offenses, having had a trial or having pleaded guilty.)

Anyway, here’s how it works:

(1) First-time applicants and an employee seeking a first-time license renewal must request, through the Department of Education (ADE), a child maltreatment central registry check, with the applicant paying the fee. That information is forwarded to the ADE.

(2) A six-month, nonrenewable license may be issued by the ADE pending the results of the check, extendable to a full year if the applicant is employed by a school district and the results of the background checks (criminal and DHS) are delayed.

(3) If the report shows a finding of a “true report,” the state Board of Education immediately revokes that provisional license.

(4) If there is a true report, the state board shall not issue a first-time license or renew an existing license – and shall revoke any existing license not up for renewal – because of that true report or because of a report of the person’s having been convicted of one of the offenses listed in A.C.A. §6-17-410, the criminal background check law. Under subsection (f)(2) of that law, a waiver may be obtained if the person meets a list of criteria.

(5) The superintendent must report a finding of a true report to the state Board of Education.

(6) The employing school district, if authorized by the school board, may pay the costs of the background checks.

(7) No one holding a license from the ADE is eligible for employment if a true report is found. The same prohibitions apply to noncertified employees. The statutes amended by Act 1173 of 2009 include: §6-17-410; §6-17-411; §6-17-414; §6-17-415; and §6-17-416.

Once upon a time, a person stayed on the registry for at least five years before removal was possible. However, Act 954 of 2009 amended A.C.A. §12-12-505 to provide that, if the “offender” has not had a subsequent report within one year from the date of the offense, and if one year has passed since his name was placed on the registry, he may petition DHS for removal. If the petition is denied, the offender must wait one more year before making another petition.

So now you have more to worry about in trying to hire an employee. Mind you, I’m not lobbying for child beaters and/or molesters to be school employees. On the contrary, they should be employed in some capacity where they don’t come within a hundred miles of a child. However, my concern is that a “true report” is so easily made, and it can have such a devastating effect on a person’s career, that I hope that a lot of thought will be put into making such a determination.

Once again, though, a new law makes money for lawyers. Because of the newly harsh effects of such a finding, almost every finding of a “true report” will be challenged before DHS and, if no relief is gained there, in court.

Ladies and Gentlemen, start your lawyers!

Return to list of Paul Blume's columns