National Service Criminal History Checks 2014 AmeriCorps Program Director Training Saratoga Springs, NY October 21, 2014

National Service Criminal History Checks Overview Purpose and requirements National Sex Offender Public Website (NSOPW). Statewide and FBI Checks Important things to note Alternative Search Protocols Consequences of non-compliance CNCS self-assessment 2

Purpose and Requirements 3

Purpose The ultimate purpose of conducting the National Service Criminal History Check (NSCHC) is to keep people, especially those most vulnerable, safe. The Serve America Act created statutory criminal history check requirements for CNCS’ grantees. Noncompliance may lead to financial penalties for your program and expose your service beneficiaries, including children, older adults, and people with disabilities, to harm. 4

Who is Subject to the Criminal History Checks? An Individual who is in a “Covered Position”. Covered Position is an individual who receives any of the following through a CNCS grant: Salary; or Stipend; or Living allowance; or National Service education award. 5

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. The source of the funds has no impact on the status of a position as covered or not covered. 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. 6

Required Checks Required checks for all covered Individuals (Two Part Check): National Sex Offender Public Website (NSOPW) State (state of residence/application and state of service) OR the FBI check Required checks for all covered individuals that will have recurring access to vulnerable populations (Three Part Check): State (State of residence and of service) FBI 7

What is Recurring Access? The ability on more than one occasion to approach, observe or communicate (phone, electronic – including email and/or social media) with an individual of a vulnerable population. If access that is not a regular, scheduled, and anticipated component of an individual’s position, it is considered “episodic” and the FBI Check is not required. 8

Vulnerable Populations Children age 17 and under Individuals aged 60 and over Individuals with disabilities .

Accompaniment Individuals must be accompanied by a person cleared for access to a vulnerable population when he/she has access to vulnerable population pending the results of the FBI or State(s) check results. Accompaniment is a higher standard than supervision and means that the individual with checks pending must be in the physical presence of someone who has been previously cleared at all times. Accompaniment may cease when the results of either the State(s) or FBI check has cleared.

Accompaniment Documentation Document every instance when an individual with pending checks serves or works with vulnerable populations and receives accompaniment. Documentation must include the dates, hours, location, and names of individual(s) who provided the accompaniment. The individual(s) providing the accompaniment should sign off on the documentation, attesting to its accuracy. Create a clear written policy describing your accompaniment guidelines and documentation procedures.

National Sex Offender Public Website (NSOPW) 12

National Sex Offender Public Website (NSOPW) What When (Timing) How Documentation “Hits” in results Consideration of the results

NSOPW What and When What: Free internet-based system ( www.nsopr.gov) operated by the U.S. Department of Justice. The system gathers data (name-based) from State-level sex offender registries. When/Timing: Check must be completed (conducted and cleared) BEFORE the start of service or employment. An individual “starts service” when the individual's time begins to be credited toward their service commitment; an individual “begins work” when the individual engages in activities chargeable to the grant.

NSOPW How How: Perform check using the candidate’s full legal name as it appears on their government-issued identification. Perform check until all State registries are reporting. The result will indicate whether or not any individual State systems were inoperable during the search. If check is less than complete, you must re-check until all states are operable. Important Considerations: Be careful of the spelling of the candidate’s name is correct (name- based system). Do not limit search by doing the Advanced search/ do not enter a zip code, state or other limiting criteria.

NSOPW Documentation Retain a record of the search and associated result either by printing the screen(s) or by some other method that retains paper or digital image of the check. The result MUST include the date for when the search was performed and must be placed in the member/employee file. Note: If the check is not conducted prior to the start of service or work and/ or if the result does not contain the date/time of the check all hours served and related costs may be disallowed.

NSOPW Hits If there are “hits” from the check, i.e., if there are individuals on the results with the same name as the candidate, you MUST conduct a more in-depth inquiry to determine whether the individual who appears on the results is the candidate or is someone with the same name. Ways to resolve the hit(s): Comparison of the registered offender's photograph from the NSOPW to the candidate's photo identification (preferable way). In-person check. If the results do not include a photo, you should compare the date of birth from the NSOPW to the candidate’s date of birth on the candidate's photo identification. Document in writing (on the printed results) who confirmed and how they confirmed that the candidate is not the one of those listed. Sign and date in pen on the results.

NSOPW Consideration of the Results You must maintain written documentation in the member’s/employee’s file that an authorized representative reviewed and considered the results of the check in selecting the individual to serve/work.

FBI and State Checks 19

Statewide and FBI Checks What? How? When (Timing)? Documentation Consideration of the results

Statewide Check What and How? The only acceptable repositories for New York State are: NYS Division of Criminal Justice Services; and NYS Office of Court Administration. Programs with Members serving in one of the five New York City boroughs may use Go Pass as an alternate source for the New York State check. Other States: A Statewide check must be completed for the state where the applicant resided upon application or currently resides in. The check must be conducted through the CNCS-designated repository for that state. The list of CNCS designated criminal history repositories for each state can be found at https://www.nationalserviceresources.org/files/table-of-designated- state-repositories-and-alternates-06-12-13.pdf.

FBI Check What is it? A criminal history record or a “rap sheet”—is a listing of certain information taken from fingerprint submissions retained by the FBI in connection with arrests. If the fingerprints are related to an arrest, the record includes name of the agency that submitted the fingerprints to the FBI, the date of the arrest, the arrest charge, and the disposition of the arrest, if known to the FBI. All arrest data included in an Identity History Summary is obtained from fingerprint submissions, disposition reports, and other information submitted by agencies having criminal justice responsibilities. Programs with Members serving in one of the five New York City boroughs may use Go Pass as an alternate source for the FBI check. Remember: FBI check is required for covered individuals that have recurring access to vulnerable populations.

FBI Check How? Accessing FBI checks: Regulations require the submission of FBI fingerprints through a state central record agency. In New York State the central record agency is NYS Division of Criminal Justice Services (DCJS) and the NYS Office of Court Administration (OCA). However, neither NYS DCJS, nor NYS OCA allows for the submission of fingerprints to the FBI. In lieu of using the state central record agency, and in order to comply with the regulations, grantees must use a “Departmental Orders Method”.

FBI Check Departmental Orders Method Using an FBI approved Channeler: For the list of Channelers, go to http://www.fbi.gov/about-us/cjis/identity-history-summary-checks/list-of-fbi-approved-channelers. Using non-law enforcement sources: The FBI can provide checks to organizations operating under federal laws designed to help protect vulnerable populations. One example is the NYS OCFS and the NYS Department of Health. These organizations disqualify candidates on criteria that sometimes go beyond the Corporation's eligibility criteria. Asking the individual to request his/her own FBI check: Individuals can ask the FBI for their own record be sent to the program. These records arrive unscreened, presenting the full FBI database.

FBI Check Departmental Orders Method continued Using local law enforcement agencies: Some programs work with their local law enforcement agencies to obtain FBI and statewide checks. Using checks conducted by program partners: Some placement site partners (e.g., public school systems, nursing homes, etc.) may perform checks that include FBI records. (Please note: If a grantee is using the New York City Department of Education through either Go Pass or New York City Personnel Eligibility Tracking System (PETS) an ASP is not required). Grantees that exercise the Departmental Orders Method option must obtain an Alternative Search Procedure or ASP from CNCS to use the method.

Statewide/FBI Check When/Timing? The Statewide check(s) and FBI check must be initiated no later than the start of service/work. Initiation is defined as one tangible, documentable step beyond getting permission to conduct the check. * One more step could include, but is not limited to: fingerprinting, mailing (emailing) requests to obtain the check(s), having forms for checks filled out by the candidates, dated fingerprint cards, payment invoices. You must be able to document how and when the check was initiated. Any service hours accrued and/or costs prior to initiation may be ineligible. You also must have policies and procedures outlining how you initiate checks and apply them consistently.

Statewide and FBI Check Documentation To keep in member’s file: Dated evidence of initiation of check(s). Receipt date when check(s) results arrive. Results of checks(s), while providing confidentiality.

Statewide /FBI Check Consideration of the Results You must maintain written documentation in the member’s/employee’s file that an authorized representative reviewed and considered the results of the checks in selecting the individual to serve/work.

Important Things to Note 29

Important Things to Note Break in Service Ineligibility 12 Required Steps Use of Vendors

Break in Service A program must conduct a criminal history check the first time an individual applies to a covered position in an AmeriCorps State program, but a second check is not required for an individual who is serving a consecutive term of service within the same program. A consecutive term of service means that there is no intervening break in service of more than 120 days during which the applicant did not serve in that specific program. However, if an individual applies for a second (or later) term of service with a different program (or with the same program but with a break of more than 120 days), new checks are required

Ineligibly to Serve or Work Individuals ineligible to Serve or Work in a covered position if they: refuse to consent to the criminal history background checks; make a false statement in connection with a program’s inquiry concerning their criminal history check; are listed on the National Sex Offender Public Website; were convicted of an offense for which sex offender registration is required; or were convicted of murder Programs should hold a thoughtful conversation about other potential offenses they may determine to be disqualifying based on the nature of their agency or service activity their members will participating in.

12 Required Steps Conducting Check The following list are critical milestones you’ll reach when clearing a candidate for service or work. Document each step along the way. Verify identity through government-issued photo identification (maintain documentation). Examples include a photocopy of the candidate’s driver’s license or passport or a form filled out with the ID #, type, and signature of the individual who examined the ID. (Note: School IDs are not acceptable). Obtain written consent from candidate to perform checks (maintain documentation). Document candidate's understanding that his/her ability to serve is dependent on check results. Provide candidate opportunity to challenge the results. Maintain documentation. Determine check types. Access to vulnerable populations will determine components of checks.

12 Required Steps Conducting Check continued Select Sources. When going through a vendor; make sure the vendor is obtaining the results from CNCS-approved sources. Perform NSOPW search before candidate begins service or work. Maintain documentation. Initiate State, and if required, FBI checks prior to beginning of service/work. Maintain documentation. Provide accompaniment while checks are pending when service or work involves vulnerable populations Maintain documentation. Document receipt date when check results arrive. Consider check results. Maintain documentation. Maintain results, while providing confidentiality.

Use of Vendors Assessing Vendors to determine if a vendor’s product meets criminal background check requirements. Will the vendor perform the right checks? Make sure the vendor will cover the checks required to meet CNCS regulations and use approved sources. Often vendors will search county-of-residence rather than CNCS designated state repositories. County checks will not meet CNCS requirements. Often vendors limits data to seven to 10 years. This will not meet CNCS requirements; checks need to go back as far as there are records. Does the vendor only provide “clear”/ “not clear” results and not the actual results. This will not meet CNCS requirements. If the vendor isn't conducting the CNCS required checks and in accordance with CNCS’ procedures, you cannot use the vendor to satisfy CNCS’ requirements.

Alternative Search Protocols (ASP) 36

Alternative Search Protocols (ASP) Programs that believe their procedures differ but substantially equivalent to or better than CNCS’ required procedures may make a request to CNCS, via the Commission, for approval to use alternative search protocols. What to include in your request: 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 an aspect of the check is prohibited by state law, attach a copy of the statute. Submit a rejection letter from the CNCS designated repository. (Note: This is not applicable to NYS checks but may affect state-of-residence checks. For example, a member residing in Arizona at time of application, cannot be checked due to Arizona state law.)

Alternative Search Protocols (ASP) continued Programs that believe their procedures differ but substantially equivalent to or better than CNCS’ required procedures may make a request to CNCS, via the Commission, for approval to use alternative search protocols. What to include in your request: 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 an aspect of the check is prohibited by state law, attach a copy of the statute. Submit a rejection letter from the CNCS designated repository. (Note: This is not applicable to NYS checks but may affect state-of-residence checks. For example, a member residing in Arizona at time of application, cannot be checked due to Arizona state law.)

Alternative Search Protocols (ASP) continued Some common ASP requests received by CNCS include: Use of a public school district system for background checks when the school’s process does not fully comply with CNCS’ requirements; Use of clearance letters from partner organization and/or schools in lieu of actual results Use of a vendor to perform background checks when the vendor doesn't not fully meet CNCS’ requirements. Use of a Departmental Method to obtain the FBI check.

Alternative Search Protocols (ASP) continued Use of a public school district to perform background checks that vary from the specific procedures required by the regulations, (to include not having access to the results) an ASP must be requested/obtained. However, you will still be required to: Document that you have checked photo identification. Document in writing that the checks were performed and that they were used in reaching a selection decision. Note: Only program officials with selection authority may establish the required written documentation.

Alternative Search Protocols (ASP) continued Clearance Letters in Lieu of Actual Results If you partner with an organization that conducts some or all of the components of the checks, but doesn’t permit you to review the actual results, then you can satisfy the documentation requirements of the checks by entering into a written agreement with the organization conducting the checks. The agreement must specify that any individual who is registered, or required to be registered, on a sex offender registry or was convicted of murder will not be cleared to work for or participate in the program. An ASP is required for clearance letters.

Consequences of Non-Compliance If program fails to comply with any requirements, CNCS may disallow the service hours and costs associated.

CNCS Criminal History Assessment Period

CNCS Criminal History Assessment Period Due to grantee confusion and non-compliance related to CNCS’s requirements, CNCS has instituted an assessment period to begin October 15th to last six weeks.

CNCS Criminal History Assessment Period During the assessment period you will be required to: Review the files of all currently serving members and employed staff (in a covered position) to identify any criminal history checks that are not compliant with CNCS requirements. Correct checks that are not compliance. Implement any corrective action needed to achieve complete and accurate compliance. Undergo CNCS training which will include on-line training course, reviewing newly posted FAQ (as of 10/10/14) and take an online quiz after completing the training and reviewing the FAQs. Instances of non-compliance during this assessment period will be without penalty (with exceptions).

CNCS Criminal History Assessment Period Findings of non-compliance during this period that will result in disallowed costs: If the individual refused to undergo the checks. If the individual gave a false statement when you inquired about his/her criminal history. If a check did not clear and the individual was registered or required to be registered on a state sex offender registry, or had been convicted of murder. If you did not initiated any check of an individual actively working or serving in covered position as of the start of the assessment period.

CNCS Criminal History Assessment Period Moratorium on collection of costs will not apply to: Pending questioned costs in OIG audits. Finings from monitoring activities for which CNCS has not issued a debt collection letter. Improper payment findings from IPERA.

CNCS Criminal History Assessment Period By the end of the assessment period you must: Confirm that you have completed the required review; Document and report your findings to CNCS; and Implement any corrective action needed to achieve complete and accurate compliance, including conducting any missing criminal history check components. Note: Findings of non-compliance identified during routine monitoring for past members and staff will not be disallowed if you can demonstrate you completed you completed the self-assessment process, and took corrective action and are now complaint.

CNCS Criminal History Assessment Period Required Steps – Recap You must complete and document the following steps for the Assessment: Identify at least two key staff persons (if you have more than one) responsible for the grant and the criminal history check process. Require them to: Take the CNCS on-line training here; http://learning.nationalserviceresources.org/pluginfile.php/27536/mod_resour ce/content/1/chc/chc.htm Review the newly posted FAQs, available here: https://www.nationalserviceresources.gov/files/faqs.pdf Take the online quiz after completing the online training and reviewing the FAQs, available here: https://www.surveymonkey.com/s/NSCHCQuiz

CNCS Criminal History Assessment Period.. continued Complete the Component Assessment form for all currently serving staff and members. The component assessment checklist is available here:https://www.nationalserviceresources.gov/files/NSCHC%20Component %20Assessment.docx Review your written criminal history policies and procedures and complete the National Service Criminal History (NSCH) Procedures Review Form available here: https://www.nationalserviceresources.gov/files/NSCHC%20Procedures%20 Review.docx Immediately conduct any missing components of the checks AND take any needed corrective action, e.g. revise your procedures to include periodic checks of files to ensure compliance, develop a checklist of required elements to attach to each file. The corrective action must be documented. (When we issue the written directions more examples of corrective actions will be provided).

CNCS Criminal History Assessment Period.. continued Complete the certification confirming you have completed the steps for the assessment and online survey with summary results to the questions. The survey is available here: https://www.surveymonkey.com/s/AssessmentFindings. Maintain all documentation of your assessment, including any required corrective action plans, the completed NSCHC Procedures Form and the NSCHC Component Forms.

Questions?