National Service Criminal Records Check 2013 AmeriCorps Project Director Training Saratoga Springs, NY October 8, 2013

WHO Identifying a covered position Identifying the type of covered position WHAT Criteria which make an individual ineligible to serve WHERE Designated sources for the three check components WHEN Application of the rule as it relates to individual start dates Timing of the check as it relates to individual start dates Criminal Background Checks- KEY POINTS 2

 Very Important requirement of your AmeriCorps grant !!  All covered individuals must have a two part check – National Sex Offender Public Registry (NSOPR), and State Repository (DCJS or NYS Unified Court System).  All covered individuals with a recurring access to a vulnerable population must have a three part check – National Sex Offender Public Registry (NSOPR), State Repository (DCJS or NYS Unified Court System), and FBI.  Under no circumstances may an individual be enrolled in an AmeriCorps Program or perform service without first having cleared the NSOPR component of the check.  Any hours that are served prior to conducting the NSOPR check will be disallowed. AmeriCorps Criminal Background Checks 3

Who’s Who? Individual in a Covered Position An individual in a covered position may be paid wholly from federal share, wholly from matching dollars, or from a mixture of federal and non-federal funds. No Recurring Access Episodic access is access that is not a regular, scheduled, and anticipated component of an individual’s position. Recurring Access The ability on more than one occasion to approach, observe, or communicate with, an individual, through psychical proximity or other means including but not limited to electronic communication $ No Access Yes Access

Individual in a Covered Position A Covered Individual is one who receives a:  salary,  stipend,  living allowance,  or a national service education award. An individual in a covered position may be paid wholly from federal share, wholly from matching dollars, or from a mixture of federal and non-federal funds. The source of the funds has no impact on the status of a position as covered or not covered.

Individual in a Covered Position Testing to determine coverage:  Positions (e.g., program coordinator; host site supervisor, etc.) listed on your funded grant budget under Federal and/or Grantee Share (matching)  Positions for which the salary, stipend or similar are included on the Expenditure Report as Federal and/or Grantee Share (matching)  For grants without budgets (Fixed amount) individuals serving or working in positions under the grant are covered If someone is paid through the program, either by the grantee or by a partner organization, to perform program activities, and the value of that person’s compensation is on the grant budget or the value is included in reported expenditures, then that person is an individual in a covered position. Pay attention to:  Changes you make after the budget is approved  Expenditures you might include to meet an unanticipated shortage of matching share contribution

Vulnerable Population  children age 17 and younger  persons age 60 and older  individuals with disabilities

Recurring Access Definition The ability on more than one occasion to approach, observe, or communicate with an individual, through physical proximity or other means, including but not limited to, electronic or telephonic communication. (45 CFR )

NNational Sex Offender Public Registry SStatewide criminal history registry/registries FFBI nationwide Criminal History Record Information (CHRI) CCHRI may be self-obtained or adjudicated result from authorized recipient, e.g., state repository OObtaining FBI check does not substitute for the required one or two statewide repository checks NO RECURRING ACCESS – Basic 2 Part Check RECURRING ACCESS – Heightened 3 Part Check

Ineligible to Serve/Work  Anyone who refuses to undergo the Check may not serve.  Anyone who makes a false statement in connection with a program’s inquiry concerning the individual’s criminal history is ineligible to serve.  Anyone listed, or required to be listed, on a sex offender registry is ineligible to serve.  Anyone convicted of murder as defined and described in 18 U.S.C. § 1111 is ineligible to serve. Programs should develop criminal history check policies that are fair to the individual, protect the populations they serve, and guard their organizations against liability.

Part 1: NSOPR WHAT The requirement to conduct the nationwide US Department of Justice National Sex Offender Registry Check (NSOPW) ( became effective with the November 23, 2007 regulations. This is public information. No fees are charged. WHEN This must be completed (conducted, cleared, documented with dated printout) BEFORE the start of service. Covered individuals cannot begin counting their hours until this check is cleared.

Part 1: NSOPR HOW This is a name based check. Results of nationwide NSOPW checks are dated screen prints of the results of the nationwide NSOPW search. You will need a government issued photo ID when adjudicating hits on a name. That result should also be annotated to document who confirmed that any hits are not the same persons as the candidate you are checking. You must document the adjudication and resolve all hits before enrollment.  Note: The fields to enter are Last name then First name. Make sure to enter them correctly.  Do not limit the search by doing the Advanced search. Do not enter a zip code, state or other limiting criteria.  Perform the search multiple times if one or more states are not functioning at the time of the check. If any state databases are unavailable the NSOPR check is incomplete until all databases are checked.

Part 1: NSOPR UH-OH! NSOPW single-state checks are not compliant checks. There is no allowance or exception to the nationwide NSOPW check and having a cleared individual being in the physical presence of the individual has no bearing on the requirement to conduct the NSOPW check prior to work

Part 2: State Repository Check(s) WHAT This check requires that you check both the State of residence and the State of service. The State of residence is determined at the time of application. WHEN These checks must be initiated no later than the start of service. Any service hours accrued prior to initiation are ineligible.

Part 2: State Repository Check(s) HOW These checks must be obtained from the CNCS designated state repository. In New York State that is either: The NYS Department of Criminal Justice Services (DCJS) OR The NYS Office of Court Administration Results of the criminal information records are the actual criminal history rap sheets, or an adjudicated result from the official state repository or an FBI authorized recipient. UH-OH! Employees can start work while State checks are pending but they cannot have access to vulnerable populations unless they are in the physical presence at all times by someone who has been cleared for access.

Accompaniment While waiting for receipt of results from state registry or FBI criminal history check individual is not permitted access to vulnerable populations without being in the physical presence of an accompanying individual as defined as: 1. An authorized grantee representative who has been previously been cleared for such assess. 2. A family member or legal guardian of the vulnerable individual. 3. An individual authorized by the nature of his or her profession to have recurring access to the vulnerable individual such as an education or medical professional.

Part 3: FBI Check WHAT The check requires that you obtain a fingerprint based FBI check. WHEN These checks must be initiated no later than the start of service. Any service hours accrued prior to initiation are ineligible. HOW The Final Rule requires programs to get FBI checks through the designated State repository. In the event that a program cannot get the check this way the FBI offers two methods for an individual to request their FBI Identification. UH-OH! Employees can start work while FBI checks are pending but they cannot have access to vulnerable populations unless they are in the physical presence at all times by someone who has been cleared for access.

FBI Channelers (New Resource) The FBI offers two methods for an individual to request their FBI Identification Record or proof that a record does not exist.  Option 1: Individuals may submit their request directly to the FBI.  Option 2: Programs may submit their request to an FBI-approved Channeler which is a private business that has contracted with the FBI receive the fingerprint submission and relevant data, collect the associated fee(s), electronically forward the fingerprint submission with the necessary information to the FBI CJIS Division for a national criminal history record check, and receive the electronic record check result for dissemination to the individual.  Note – If a Channeler is used the program must submit an ASP to the Commission requesting to use the Channeler. Go to:

Federal Compliance Requirements  NSOPR check must be completed before service/work begins  Criminal history check(s) initiated no later than the start of service/work  Verify identity with government photo identification  Obtain written authorization prior to initiating checks  Document understanding that selection is subject to the checks  Determine where the checks must be obtained from

Federal Compliance Requirements  Pay for the checks  Provide opportunity for review of findings  Keep information confidential  Maintain Physical Presence while checks are pending when in contact with vulnerable populations (must be noted on timesheets).  Maintain the results of the checks  Document identify verification and completion of check  Document that you considered the results of the checks

Criminal History Checks – Timing  Perform and document nationwide NSOPR check prior to start of service/work. You must print results with date stamp in put in the members file.  Covered individuals cannot serve or work before the program completes the nationwide NSOPR. There is no allowance or exception to the nationwide NSOPR check and having a cleared individual accompany the individual has no bearing on the requirement to conduct the check prior to service. Any hours the individual serves before they are documented as clearing a nationwide NSOPR check cannot be counted towards service.  Initiate State and FBI checks no later than the start of service/work. Be sure to print result with date stamp for records.  Members can start service while State/FBI checks are pending. But they cannot have access to vulnerable populations unless they are accompanied at all times by someone who has been cleared for access.  Accompaniment of the individual may cease when results from either the state component or the FBI component are received. Programs do not need to receive results from both components before electing to cease accompaniment. 

Documentation You Must Create and Retain  Maintain the results of the checks  Document that you verified the individual’s identity and conducted the checks  Document that you considered the results of the checks Results of nationwide NSOPR checks are dated screen prints of the results of the nationwide NSOPR search. That result should be annotated to document who confirmed that any hits are not the same persons as the candidate you are checking. Results of the criminal information records are the actual criminal history rap sheets, or an adjudicated result from the official state repository or an FBI authorized recipient. To retain anything else in lieu of the actual results, such as a clearance letter from a school, requires approval of an alternate search procedure.

Episodic Access Access that is not a regular, scheduled, and anticipated component of an individual’s position description. For covered individuals with episodic access to a vulnerable population the program is not required to conduct the heightened check on the individual. Mitigate risk by:  Label position descriptions as “having access” or “not having access” to vulnerable populations  Inform employees/participants of their determinations  Periodically review determinations

Other Important Things to Note For the purpose of national service criminal history checks, the break in service period has increased from 30 days to 120 days. There is no break in service if the person comes back for a consecutive term within 120 days (within the same program). Break in Service The requirement for individuals who have recurring access to vulnerable populations should be applied based on the individual providing services to vulnerable populations, not with vulnerable populations. An individual in a covered position does not need the three component check if the recurring access is limited to individuals who are themselves, serving in a covered position. Service to not Service with

Alternative Search Procedure (ASP)  Are the correct required sources used? ◦ NSOPW ◦ State Repository (DCJS or OCA) ◦ FBI  Is there access to check results for oversight & monitoring?  Are the results coming from the designated source for a state?  Are all requirements found in regulations followed?  … if one or more “no” answers, then an ASP is needed and must be submitted to your program manager at the State Commission.

Alternate Search Procedure What to Include: Identify the specific element(s) of the requirements that you would vary from. Describe the alternative process/system you plan to use to conduct a criminal history check. If prohibited by state law, attach a copy of the statute or prohibition along with a legal analysis from either the Attorney General or legal counsel. Please submit where applicable a rejection letter from the CNCS designated repository. Perform accompaniment for those with recurring access to vulnerable populations while ASP decision is pending. Providing evidence to support equivalency claims

Assessing Vendors Vendor products may address all or some of the components of the National Service Criminal History Check. If the vendor’s product deviates from the National Service Criminal History Check procedures, an ASP is required. Review your Vendor as follows: NSOPW  Does the vendor conduct a nationwide search through the NSOPW website (nsopw.gov)?  Does the vendor have a process for ensuring that if a link between the NSOPW and the state, tribe, or territory is temporarily down, that a result is not returned to you before the NSOPW check returns results from all states, tribes, and territories?  Does the vendor enter the individual’s name?  Does the vendor compare a government-issued photo ID of the individual with the photos generated as a result of the search?  Does the vendor provide a dated screenshot of the results screen to you for your files?

Assessing Vendors State Criminal History Check Components  Does the vendor obtain state criminal history information from the CNCS designated source in every state?  Is the vendor’s access to information the same as the timeframe for which you could obtain information if you did not use a vendor? (Answer “No” if the vendor limits the available history to 7 years or any duration other than what is available from the designated source.)  Will the vendor provide you with the actual results returned to it by the designated source for your organization to adjudicate?

Assessing Vendors FBI Fingerprint National Criminal Background Check Component  Does the vendor submit fingerprints to the FBI through a CNCS designated source?  Will the vendor provide you with the actual results returned to it by the designated source for your organization to adjudicate?  Does the vendor maintain records for the timeframe required under the grant?  If you answer No to any of the questions above, an ASP is required in order to use the vendor’s product

Alternate Search Procedure  CNCS updated the approved alternate sources for checks on volunteers serving in New York City to include the New York Go Pass system. Details can be found at: history-check-resources history-check-resources  CNCS approved New York City Personnel Eligibility Tracking System (PETS) as an Alternate Source for National Service Criminal History Checks. Details on PETS can be found at: sandResources/Prov_Resources.htm sandResources/Prov_Resources.htm

Common Compliance Findings (What NOT to do…) Programs allowed individuals in covered positions to start service or work before the program performs the nationwide NSOPR. Programs allowed individuals in covered positions unaccompanied access to vulnerable populations before the criminal history information results from state repository or FBI checks were cleared State and FBI checks are being initiated after the individuals start service or work.

Pay Attention to:  Write Policies and Procedures in case of staff turnover. Transfer this knowledge.  DO NOT fail to document, document, document!  If a third-party is involved, whether it be a partner site, community organization or commercial vendor, the program assumes the responsibility and liability of ensuring every component of the National Service Criminal History Check meets all requirements.  Understand the requirements and ask your vendor the right questions.  Ignoring the responsibility will not make it go away.

Consequences If program fails to comply with the requirements, the Corporation may disallow the service hours and apply the same policies in these cases as they apply to improperly certified education awards and ineligible stipends, salaries or living allowances. If the problem is widespread or the program was negligent, the program may be required to pay the Corporation for the full amount of any associated grant- funded program costs (e.g., stipends, salaries, living allowance) and the National Service Trust for any earned education award. If the program was not negligent or the problem was an isolated lapse, the program may be required to pay only the portion of the stipend, salary or living allowance and education award earned before the NSOPR results were established and other checks were initiated.

Tools and Resources Resource Center  Regulations  FAQs and Alerts  Instructions on how to request an ASP  Fact Sheets, e.g., FBI checks Status questions: ASP Submission Your program administrator at the State Commission

2013 AmeriCorps Project Director Training Saratoga Springs, NY October 8, 2013 Questions?