This chapter establishes the general provisions to comply with the child sexual abuse and sexual misconduct background history review established by Education Article, §6-113.2, Annotated Code of Maryland. Included in the chapter are definitions, reporting violations of the general provisions, penalties for entities that fail to comply with the provisions, and the establishment of an appeals process. In this subtitle, the following terms have the meanings indicated. Terms Defined. “Child sexual abuse” means an act by an adult involving a minor or a student that constitutes a sexual offense under the laws of the State, or any sexual contact between an adult and a minor. “Contracting agency” means an entity that contracts with a county board or nonpublic school to provide a service to a school or the students of a school. “Current or former employer” means a county board, nonpublic school, or any other entity through which an individual had direct contact with minors. “Department” means the Maryland State Department of Education. “Direct contact with minors” means the care, supervision, guidance, or control of or routine interaction with a minor. “Emergent employee” means an employee hired by a county board or nonpublic school without completing the employment history review required under Regulation .03 of this chapter. “Prospective employer” means a county board, nonpublic school, or contracting agency that is considering hiring an applicant for a position involving direct contact with minors. “School” means a public or nonpublic school. “Sexual misconduct” means an act by an adult, including an oral, nonverbal, written, or electronic communication, or a physical activity directed toward or with a minor that is designed to promote a romantic or sexual relationship with the minor, including: Sexual or romantic invitation; Dating or soliciting dates; Engaging in sexualized or romantic dialogue; Making sexually suggestive comments; Grooming behaviors; Self-disclosure or physical exposure of a sexual, romantic, or erotic nature; and A sexual, indecent, romantic, or erotic contact with the minor. Employer Requirements for Employment History Review. A county board, nonpublic school, or contracting agency shall follow the requirements of Education Article, §6-113.2, Annotated Code of Maryland, to obtain information on an applicant’s child sexual abuse and sexual misconduct history from current and former employers before hiring that individual for a position involving direct contact with minors. Current employers, former school employers, and former employers where the applicant had direct contact with minors within the last 10 years shall complete and return the employment history review form to a prospective employer within 20 days of receiving the employment history review form. Employers shall provide the information required by Education Article, §6-113.2, Annotated Code of Maryland, unless an exception provided for in the law does not require disclosure of the information. Applicant Requirements for Employment History Review. An applicant for a position involving direct contact with minors shall submit to a county board, nonpublic school, or contracting agency both the contact information and a signed written consent form authorizing the release of all records relating to child sexual abuse or sexual misconduct from the following employers: The current employer; All former school employers, including employers for which the applicant was an emergent employee; and Former employers where the applicant had direct contact with minors within the last 10 years. An applicant for a position involving direct contact with minors shall also submit to a county board, nonpublic school, or contracting agency a written statement of whether the applicant: Has been the subject of a child sexual abuse or sexual misconduct investigation by any employer, arbitrator, county board, State licensing agency, law enforcement agency, or child protective services agency, unless the investigation resulted in a finding by: The employer that allegations that the applicant engaged in sexual misconduct lacked sufficient evidence according to the policies of the county board or nonpublic school; An arbitrator or a county board to reject any disciplinary action in response to allegations that the applicant engaged in sexual misconduct; A State licensing agency that allegations that the applicant engaged in sexual misconduct lacked sufficient evidence according to either State law or the policies of the county board or nonpublic school; A law enforcement agency that allegations that the applicant engaged in child sexual abuse were unfounded; or A child protective services agency that allegations that the applicant engaged in child sexual abuse were ruled out; or While allegations of child sexual abuse or sexual misconduct were pending or under investigation, or due to an adjudication or findings of child sexual abuse or sexual misconduct, has ever: Been disciplined, discharged, nonrenewed, asked to resign, or otherwise separated from any employment; or Had a license, professional license, or certificate suspended, surrendered, or revoked. Sharing Employment History Reviews. A county board or nonpublic school may: Share an employment history review with other county boards and nonpublic schools; and Use an employment history review completed by a current or former employer that is a county board or nonpublic school if the applicant swears or affirms that the completed employment history review includes all prior employment required to be reported and provides information about any subsequent employment. A contracting agency may: Share an employment history review with other contracting agencies; and Use an employment history review completed by a current or former employer that is a contracting agency if the applicant swears or affirms that the completed employment history review includes all prior employment required to be reported and provides information about any subsequent employment. Emergent Employees. Applicants may be hired by a county board or nonpublic school as emergent employees for a period not to exceed 60 days pending the employment history review if: The applicant has provided all required information and supporting documentation; An employer has no knowledge of information that would disqualify the applicant from employment; The applicant swears or affirms that the applicant is not disqualified from employment; and The applicant is not authorized to work alone with minors unless the applicant: Works in the immediate vicinity of a permanent employee; or Is a school vehicle driver subject to audio and video monitoring and recording that is promptly reviewed by school administrators. The county board or nonpublic school may rescind the offer of employment or complete the hiring process at any time within 60 days of hiring the applicant as an emergent employee. A county board’s decision to dismiss an applicant hired as an emergent employee for any reason other than child sexual abuse or sexual misconduct may be appealed within 60 days of hiring in accordance with: Education Article, §4-205, Annotated Code of Maryland; Education Article, §6-202, Annotated Code of Maryland; or The collective bargaining agreement applicable to the emergent employee. Except as provided in §D of this regulation, a prospective employer shall report to the Department if a current or former employer does not complete and return the employment history review form within 20 days of its receipt. The prospective employer shall make the report immediately to the Department using a form specified by the Department. The report shall include: The name, address, phone number, fax number, and email address for the current or former employer; A detailed list of all attempts made by the prospective employer to contact the current or former employer, including method of contact, date of attempted contact, and any response; Any supporting documentation or other information relevant to the report; and The name of the individual making the report, along with the individual’s title, employer, address, phone number, and email address. The prospective employer may not make a report to the Department if: The current or former employer has no record of employing the applicant, no longer retains records for the applicant, or otherwise has no records available about the applicant; The current or former employer is no longer in business and no other entity has records for the closed business; The current or former employer did not complete the form because: The laws of the state in which the current or former employer is located prohibit the release of the information or records requested; or The disclosure of the information and records requested is restricted by the terms of a contract entered into on or before June 30, 2019; or The prospective employer did not make three attempts to obtain the form. A current or former employer shall report to the Department if it learns that a certificated employee has knowingly provided false information in connection with an employment history review form or deliberately withheld information concerning past incidents of child sexual abuse or sexual misconduct. Subject to §§B—D of this regulation, the Department may impose a fine against any current or former employer that does not provide the information required by the employment history review form within 20 days of its receipt. Prior to imposing a fine, the Department shall send a warning letter to the current or former employer that explains: The requirements of the law; and How the current or former employer failed to comply with the law. The Department shall provide the current or former employer with 10 additional days in which to complete the employment history review form or explain why it is exempt from the reporting requirements. If, after the 10 additional days have passed, the current or former employer has not returned a completed employment history review form or provided a legal exemption from the reporting requirements, the Department may impose a fine. Fine Schedule. The fine imposed under §D of this regulation shall be: $1,000 for a first offense; $2,500 for a second offense; and $5,000 for a third or subsequent offense. Penalties Against Applicants or Employees. An applicant or employee who provides false information to or deliberately withholds information regarding current or past employment from an employer as part of the child sexual abuse and sexual misconduct background history review may be denied employment or terminated from employment, if consistent with the employer’s policies. For professionally certificated personnel, the Department may take action to deny, suspend, or revoke an educator’s certificate based on providing false information or deliberately withholding information, in addition to any discipline imposed by an employer. A current or former employer may appeal a fine in writing to the State Superintendent of Schools within 15 days of the Department imposing the fine. The appeal shall include the reasons for taking the appeal, along with any supporting documentation. The State Superintendent of Schools shall forward the appeal to the Office of Administrative Hearings for a proposed decision, including findings of fact and conclusions of law. An employer or the Department may file exceptions to the Administrative Law Judge’s proposed decision within 15 days of the decision being issued. The State Superintendent of Schools may affirm, reverse, or modify the Administrative Law Judge’s proposed decision. The decision of the State Superintendent of Schools is the final decision of the agency. Education Article, §§2-205(c) and 6-113.2, Annotated Code of Maryland Effective date: September 21, 2020 (47:19 Md. R. 850) Regulation .02B amended effective February 21, 2022 (49:4 Md. R. 301) Regulation .03 amended effective February 21, 2022 (49:4 Md. R. 301)