1 Minimize Your Risk through National Service Criminal History Checks (Part 1 of 2) Corporation for National and Community Service, Office of Grants Management, Washington, D.C. Douglas Godesky, Senior Grants Officer Tom Bryant, Associate General Counsel ***Slide 5 Edited June 29, 2011 Post-Conference ***

2 Agenda for Part 1 of 2 Requirements Over Time Identifying Covered Individuals Checks for Different Types of Contact Update on Regulations Questions

3 Requirements Over Time

4 An individual is a covered individual … If they, or their position or role, is listed as an estimated direct cost on the grant program budget, either federal or non-federal (matching) share, as receiving salary, stipend, living allowance, national education award or similar, in return for providing service to the program; or, The costs associated with that person (for salary, stipend, living allowance, etc.) will be included within amounts reported as expenditure of either grant federal or matching share, on the programs financial reports

5--- Slide 5 Edited Post- Conference ----

6 Covered individuals without recurring access to vulnerable populations undergo two-part checks: National Sex Offender Public Registry Nationwide search using Performed before start of service/work Statewide criminal history registry State of residence plus State where they will work or serve Must use designated Statewide repositories or obtain alternate approvals FBI checks may substitute for one or both States Must initiate NLT start of work or service

7 Covered individuals with recurring access to vulnerable populations undergo three-part, FBI checks: National Sex Offender Public Registry Statewide criminal history registry/registries FBI nationwide Criminal History Record Information (CHRI) CHRI may be self-obtained or adjudicated result from authorized recipient, e.g., state repository Obtaining FBI check does not substitute for the required one or two statewide repository checks

8 Update on Regulations Regulations to implement the FBI check –Will be published soon –Will offer public comment period for 30 days –Final regulations will permit time to establish compliance New types of exceptions –Excessive cost –Cannot access FBI checks (due to State or Federal law) –Other good cause Improvements –Clarity on recurring access to vulnerable populations –Clarity on public citizen beneficiaries –Clarity on other areas, e.g., foreseeable contact

9 Clarification on Impacts Covered individuals whose service or employment involves recurring access to a vulnerable population, who begin service or employment on or after April 21, 2011, must clear an FBI check in addition to the existing two components of the check (sex offender registry and statewide criminal history). Because the revised regulations are not yet published, the Corporation is allowing programs to delay performing the FBI check -- but all three components of the check must still eventually be performed.

10 Clarification on Impacts There is no exemption for short-term (e.g. summer) programs to perform all three check components. Even if service begins after April 21, 2011 and will end before the regulations are final (August 2011 or later), all three components of the check must be completed to establish eligibility and for expenditures to be charged to the grant.

11 Clarification on Impacts Final regulations will offer a 60-day period to comply with three-part FBI checks. You should anticipate that final regulations will be published about August 2011; delayed compliance would expire 60 days thereafter. Each national service program must choose what is most advantageous – either comply with the FBI check requirements now, or use the rule-making and delayed compliance period to explore options on how best to comply, or whether or not you will seek an exemption as described in the regulations.

12 End Part 1 Questions on the Requirements Covered programs Covered individuals Types of checks Upcoming regulations General and grant-specific questions:

13 Minimize Your Risk through National Service Criminal History Checks (Part 2 of 2) Corporation for National and Community Service, Office of Grants Management, Washington, D.C. Douglas Godesky, Senior Grants Officer Tom Bryant, Associate General Counsel

14 Agenda for Part 1 of 2 Developing a Strategy to Minimize Risk Accessing FBI Checks Successful / Unsuccessful ASPs Questions

15 Develop a Strategy for National Service Criminal History Checks to Minimize Risk Protect public, employees, participants Avoid questioned costs Prevent unflattering front page news Demonstrate program compliance

16 1: Identify Covered Individuals Pay attention to: Who is listed on your funded grant budget Changes you make after the budget is approved Mitigate risk by: Label position descriptions as having access or not having access to vulnerable populations Inform employees/participants of their determinations Describe in PD individuals foreseeable recurring access Periodically review determinations

17 2: Address Partnerships Covered Individuals Pay attention to: Matching contributions involving in-kind value on budget Changes you make after the budget is approved Mitigate risk by: Determine if partner performs compliant checks or might be ASP suitable Establish clear contract-based expectations, particularly around access to timing of the checks and access to records Documenting that the checks considered and individual is eligible to serve/work remains with the program

18 3: Develop Policies and Procedures Pay attention to: Sequence that required steps will be performed Your organizations needs for stricter criteria Mitigate risk by: Strategically involving all program staff in planning when and how checks will be conducted Plan when and how accompaniment will be accomplished Include additional disqualifying offenses that fit your organizational needs or local/state laws

19 Federal Compliance Requirements 1.NSOPR check completed before service/work begins 2.Criminal history check(s) initiated NLT start of service/work 3.Verify identity with government photo identification 4.Obtain written authorization 5.Document understanding that selection is subject to the checks 6.Determine where the checks must be obtained from 7.Pay for the checks 8.Provide opportunity for review of findings 9.Keep information confidential 10.Accompaniment when checks are pending & in contact with vulnerable populations 11.Maintain the results of the checks 12.Document that you verified identity and conducted the checks 13.Document that you considered the results of the checks

20 4: Perform Checks Pay attention to: Must use designated State repositories Candidates who must have FBI checks Situations where alternate search protocol approval is needed – ASP Mitigate risk by: Advance preparation for access to State repositories Plan how you will obtain FBI checks Learn from other grantees / affinity groups, etc.

21 5: Pursue ASP Pay attention to: Defining exactly what variance you are seeking Offering an alternative that is substantially equivalent Mitigate risk by: Providing proof, when appropriate Providing evidence to support equivalency claims Providing technical details when systems are involved Perform accompaniment while ASP is pending Schools, placement sites, and vendors who will partner with you to seek the ASP are most likely to succeed

22 ASPs to Use Public Schools, Partners, Vendors If the answer is yes to all of the following … Do they obtain data from required sources? (NSOPR, States, and FBI) Are the checks performed on the required timeline? Do they allow access to the check results for oversight & monitoring? Are the results either the rap sheet or a clearance from a government entity? (a school, partner or vendor clearance declaration is not the same as the rap sheet or governmental result) Are all CNCS required procedures followed? Is anything permitted that conflicts with requirements? … then the partner/placement/vendor checks are compliant and there is no need for an ASP … one or more no answers require an ASP

23 ASPs to Use Public Schools Public school ASPs will be approved but they also are likely to be conditioned approvals You must fully research how a public school system performs its checks to identify non-compliant elements Reasons ASPs for public schools have been conditioned: –Accepting pre-existing checks –Permitting delayed checks –Permitting appeals, and then employment of convicted offenders –A non-governmental result such as clearance letters from school officials, as third parties to the license, or clearance agency

24 ASPs to Use Vendors Checks based on real time data from designated statewide repositories with audit trail capability = no ASP needed Checks based on county, or counties of residence – not statewide – and nothing more – are not being approved Vendor ASP likely to be approved if it obtains statewide, all conviction data from a governmental source, and provides you with all years of information from that system

25 ASPs to Use Vendors You need the details on: –What a vendors products give you, not just marketing hype –Why that product should be considered substantially equivalent or better, and not just a declaration that it is better –Where the vendors data comes from, including whether they extract it or purchase from other companies –What is the vendors quality control protocol –How far back the information they obtain, and release to you, dates – is it everything that the source system has?

26 Accessing FBI Checks Nothing new has developed since the Corporation issued its March 2011 fact sheet guidance, sources of FBI checks remain: State repositories Special purpose state agencies Using non-law enforcement sources authorized by law Asking the individual to request his/her own FBI check Local law enforcement agencies Program partners who have access to sources

27 Accessing FBI Checks Potential options being explored: Pilot using an FBI channeler State agency-to-agency partnerships, e.g., departments of education Expanded state authorities (legislation)

28 Successful and Unsuccessful ASPs Request: Use of vendor, many requests Decision: Denied. Rationale: –Few, or no details provided on how checks performed –Names of governmental information sources vague or conflicting terminology –Limitation to how many years of data provided –Limited to only one or a few counties checked –Requested vendor has been asked about in the past and details never provided

29 Successful and Unsuccessful ASPs Request: Use of public schools (many requests) Decision: Approved, with conditions: –Vary by public school district

30 Successful and Unsuccessful ASPs Request: Use of vendor in lieu of California DOJ checks when denied access to CA DOJ (does not address FBI checks) Decision: Approved, detailed proposal with conditions provided: –College age and younger candidates only –Checking all counties of residence throughout the US –Checking all statewide official repositories where candidates lived

31 Successful and Unsuccessful ASPs Request: Perform nationwide search to identify where candidate has lived, only check program state if they had visited or resided there Decision: Denied. Rationale: –Checking programs state where the individual will be serving/employed is fundamental regulatory standard not to be waived

32 Successful and Unsuccessful ASPs Request: Permit checking state where candidate was attending college in lieu of state of residence Decision: ASP not needed. Rationale: –2007 regulations preamble defined college students school location to be state of residence

33 Successful and Unsuccessful ASPs Request: Check county court records where individual lived and county where they will work/serve Decision: Denied. Rationale: –Not a statewide, substantially equivalent check –Program must design a stronger proposal

34 Successful and Unsuccessful ASPs Request: Use of a vendor who checks the Georgia state repository, and accept university prohibition of examination of records Decision: Denied. Rationale: –Georgia operates several statewide repositories, vendor details needed on what system is checked –Designated Georgia Crime Information Center is okay –Name-based Georgia Felon Search system not acceptable since it does not contain all crime records –No state law or university policies on records provided

35 Successful and Unsuccessful ASPs Request: Use of a universitys vendor performing both sex offender and criminal history checks Decision: Denied. Rationale: –Vendor not using NSOPR –Vendors sex offender sources less than all States, territories and Tribes –Vendor limits reports to last 7 years of records

36 Successful and Unsuccessful ASPs Request: Use of Indianas fingerprint based Limited Criminal History Check with qualified or disqualified as the only result provided Decision: No ASP needed. Rationale: –Adjudicated result from authorized recipient (state repository) –FBI does not permit authorized recipients to distribute rap sheets, they must adjudicate the results

37 Successful and Unsuccessful ASPs Request: Use of State university vendor for summer only program, vendor had not been approved when use requested outside of university system Decision: Approved, rationale and conditions: –Proof provided that State police checks taking 6+ weeks in an 8 week program –Deference to State government university choices –College age and younger candidates, only when checked through university contract

38 Successful and Unsuccessful ASPs Request: Use of pre-existing FBI checks based on Nebraska and Utah concealed firearm permit license Decision: Approved, as proposed and with conditions: –Renewal documentation required –Files must not be individually distinguishable

39 Questions Open discussion now General and grant-specific questions: gov gov

40 Recent Common Questions Results of a criminal history check can be a summary report (e.g., adjudicated to pass/fail) so long as coming from repository; other sources need ASP US DOJ report has not come out and we do not expect any silver bullet solutions Requests for exemptions will not be accepted for consideration until the final regulations are published (estimate August-September 2011). Nationwide programs that recruit from all states have a need to know how to get a check in every state. Vendors. There is no fully approved vendor but making progress.

41 Tools and Resources Resource Center – history –FAQs, regulations, fact sheets –Instructions on how to request an ASP –Staff screening Tool Kit, 3rd Edition ASP submission and status questions: Contact Kim Hammonds, Office of Grants Management, or for status information, confirm receipt, etc.