§ 38-13-7 — Duties of Departments of Public Safety and Human Resources; Review of Determinations

Alabama § 38-13-7

• Jurisdiction: Alabama
• Title 38: Public Welfare
• Ch. 13: Criminal Background Checks on Persons Responsible for Children, Elderly, and Disabled

Text

(a) Criminal history background information checks shall be performed by the Department of Public Safety upon request by an employer, child care facility, adult care facility, or child placing agency authorized to make a request, or the Department of Human Resources. The Department of Public Safety shall provide a criminal history background check within a reasonable time of the receipt of the request. National criminal history background checks shall be requested by the Department of Public Safety from the Federal Bureau of Investigation within a reasonable time of the request. The Department of Public Safety, upon receipt of the criminal history background report from the Federal Bureau of Investigation, shall forward the report to the Department of Human Resources within a reasonable period.
(b) Criminal history background information reports shall be sent from the Department of Public Safety to the Department of Human Resources, directly or through its designated agent, within a reasonable time from the receipt of the report from the Federal Bureau of Investigation. A copy of a criminal history report from the Department of Public Safety and the Federal Bureau of Investigation that contains potentially disqualifying crimes or disqualifying crimes shall be sent by the Department of Human Resources to the applicant or employee by certified mail . The Department of Human Resources shall review the criminal history record information report and other information received and determine whether the applicant, employee, or volunteer meets the suitability criteria for employment or licensure based on the criminal history background information check. The Department of Human Resources shall issue a written suitability determination to the applicant or employee and to the licensing entity or chief executive officer of the child care facility or adult care facility requesting the criminal history background information check. The Department of Public Safety shall notify the Department of Human Resources of arrests or convictions entered into the automated system subsequent to the initial report, for a crime committed by an individual for whom a criminal history background information report has been previously requested, regardless of the existence, or lack thereof, of a criminal history at the time of submission for a criminal history background information check pursuant to this chapter. The Alabama Criminal Justice Information Center shall notify the Department of Public Safety which shall notify the Department of Human Resources of the arrest or conviction information for applicants that receive name-based criminal history background information checks. The Department of Human Resources shall include the arrests or convictions in an amended or subsequent suitability determination.
(c) A person may contest the accuracy or completeness of the Alabama criminal history background information check pertaining to him or her with the Department of Public Safety according to procedures established by that agency. The person or his or her legal counsel may review at the Department of Human Resources a copy of the Alabama criminal history background information report from the Department of Public Safety. If, upon review by the Department of Public Safety, the information is determined to be incorrect or incomplete, the information shall be corrected appropriately, and the Department of Human Resources shall be provided with the corrected information.
(d) The Department of Human Resources shall issue a suitability determination and maintain a confidential file on individuals for whom a criminal history background information report or report updates have been received. The Department of Human Resources may issue a suitability determination based upon the criminal history report on file without the requirement of a new criminal history background information check. If no report or if only an incomplete criminal history report can be located in the files of the Department of Human Resources, the individual shall be required to submit to a new criminal history background information check.
(e) Within 30 days of the date of notification, an individual determined to be unsuitable for approval, licensure, employment, or volunteer work by the Department of Human Resources based upon a disqualifying conviction may request in writing reversal of the determination of unsuitability if the conviction is not for a sex crime or a crime committed against a child, an elderly individual, or an individual with disabilities. An individual with a conviction excluded by federal law from being approved as a foster or adoptive parent, as any other child care or adult care provider, or volunteer may not be considered for reinstatement.
(f) Notwithstanding subsection (e), the following shall apply to requests for reversal of the determination of unsuitability:
In the case of a felony conviction, 10 years shall have lapsed since the sentence was served or the probation or parole ended, whichever is later, with no subsequent conviction. In the case of a misdemeanor conviction, five years shall have lapsed since the sentence was served, or the probation or parole ended, whichever is later, with no subsequent conviction. In addition to the foregoing, the individual shall affirmatively demonstrate to the Department of Human Resources successful rehabilitation by clear and convincing evidence. In determining whether an individual has affirmatively demonstrated successful rehabilitation, all of the following shall be considered:
(1) Nature and responsibility of the position which the convicted person would hold or has held.
(2) Nature and seriousness of the offense committed.
(3) Circumstances under which the offense occurred.
(4) Date of the offense.
(5) Age of the person when the offense was committed.
(6) Whether the offense was an isolated or repeated incident.
(7) Social conditions which may have contributed to the offense.
(8) An available probation or parole record, report, or recommendation.
(9) Evidence of rehabilitation, including good conduct in prison or in the community, counseling or psychiatric treatment received, acquisition of additional academic or vocational schooling, successful business or employment history, and the recommendation of his or her supervisors.
(g) The Department of Human Resources and the Department of Public Safety may adopt rules and regulations to implement the procedures and requirements of this chapter pursuant to the Administrative Procedure Act, Section 41-22-1, et seq.

Legislative History

(Act 2000-775, p. 1775, §7; Act 2012-55, p. 92, §1.)