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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 ***

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

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Date Covered Individual Hired or Service Began

Must identify the covered individuals in each program:

Before November 23, 2007*

November 23, 2007 – September 30, 2009

October 1, 2009 – April 20, 2011

On or after April 21, 2011

Recurring Access to vulnerable populations

N S F N S F N S F N S F

Yes AmeriCorps State/National

No

Yes FGP

No

Yes Senior Companion

No

Yes RSVP

No

Yes VISTA program

grant staff No

Yes Learn & Serve

No

Yes

Pro

gram

Other Grant Programs

No

N = NSOPW; S = State registry check; F = FBI fingerprint check * This applies to individuals who were enrolled or employed as of November 23, 2007, but were hired or enrolled prior to that date.

Requirements Over Time

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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 program’s financial reports

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National Service Criminal History Check Position Type Coverage i

Grant Category

Em

plo

yees

Par

tici

pant

sii

Sub

-gra

nts

Sit

e S

uper

viso

rs

and

Sim

ilar

Vol

unte

ersii

i

Pro

gram

B

enef

icia

ries

iv

VIS

TA

V

olun

teer

s

AmeriCorps State Programs Covered Covered Covered

Covered

Not Covered

Not Covered

Not Covered

AmeriCorps National Direct Programs (Traditional) Covered Covered Covered

AmeriCorps Fixed Price Awards and Sub-awards Covered Covered Covered

AmeriCorps Education Award Only (EAP) Not

Covered Covered

Not Covered

Not Covered

AmeriCorps Commission Administrative Grants Variesv N/A Covered

Covered

AmeriCorps Commission PDAT and Disability Grants Not

Covered N/A

Not Covered

Learn and Serve America Covered Covered Covered

Foster Grandparent Covered Covered N/A

Retired and Senior Volunteer Program (RSVP) Covered N/A Covered

Senior Companion Covered Covered N/A

Social Innovation Fund Covered Covered Covered

Martin Luther King Day of Service Covered N/A Covered

Non-profit Capacity Building Covered Covered Covered

i Coverage requires the individual to be on-the-budget receiving a salary, stipend, living allowance, national education award or similar payment for providing service to the program, or the cost will be included in amounts reported as a grant expenditure of either federal or non-federal (matching) share funds. ii Participants include, but not limited to, AmeriCorps members, Senior Corps foster grandparents and senior companions, all of whom are receiving a national education award, stipend, or other remuneration for their service. Summer of Service education award recipients are not covered. iii Volunteers donating time and not receiving salary, stipend, living allowance or other remuneration are not covered. iv Beneficiaries are citizens who are not performing a service for the program, but rather receiving a service from the program. v Most commission administrative grants do not involve the commission directly running a national service program, and there therefore most commissions' employees are not covered. Employees of commissions directly running a national service program are covered.

--- Slide 5 Edited 06-29-11 Post-Conference ----

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Covered individuals without recurring access to vulnerable populations undergo two-part checks:

National Sex Offender Public Registry Nationwide search using www.nsopr.gov

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

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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

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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

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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. 

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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.

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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.

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End Part 1Questions on the Requirements

• Covered programs• Covered individuals• Types of checks• Upcoming regulations• General and grant-specific questions:

CriminalHistoryCheckQuestions@cns.gov

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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

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

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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

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1: Identify Covered IndividualsPay 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 individual’s foreseeable recurring access• Periodically review determinations

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2: Address Partnerships’ Covered Individuals

Pay attention to:• Matching contributions involving in-kind value on budget• Changes you make after the budget is approvedMitigate 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

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3: Develop Policies and ProceduresPay attention to:• Sequence that required steps will be performed• Your organization’s needs for stricter criteriaMitigate 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

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Federal Compliance Requirements1. NSOPR check completed before service/work begins2. Criminal history check(s) initiated NLT start of service/work3. Verify identity with government photo identification4. Obtain written authorization5. Document understanding that selection is subject to the checks6. Determine where the checks must be obtained from7. Pay for the checks8. Provide opportunity for review of findings9. Keep information confidential10. Accompaniment when checks are pending & in contact with

vulnerable populations11. Maintain the results of the checks 12. Document that you verified identity and conducted the checks13. Document that you considered the results of the checks

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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.

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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

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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

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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

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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

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ASPs to Use Vendors

• You need the details on:– What a vendor’s 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 vendor’s data comes from, including whether

they extract it or purchase from other companies– What is the vendor’s quality control protocol– How far back the information they obtain, and release to

you, dates – is it everything that the source system has?

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Accessing FBI ChecksNothing 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

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Accessing FBI ChecksPotential options being explored:• Pilot using an FBI channeler• State agency-to-agency partnerships, e.g., departments

of education• Expanded state authorities (legislation)

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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

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Successful and Unsuccessful ASPs• Request: Use of public schools (many

requests)• Decision: Approved, with conditions:

– Vary by public school district

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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

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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 program’s state where the individual will be

serving/employed is fundamental regulatory standard not to be waived

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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 student’s

school location to be state of residence

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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

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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

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Successful and Unsuccessful ASPs

• Request: Use of a university’s vendor performing both sex offender and criminal history checks

• Decision: Denied. Rationale:– Vendor not using NSOPR– Vendor’s sex offender sources less than all States,

territories and Tribes– Vendor limits reports to last 7 years of records

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Successful and Unsuccessful ASPs• Request: Use of Indiana’s 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

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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

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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

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Questions

• Open discussion now

• General and grant-specific questions: CriminalHistoryCheckQuestions@cns.gov

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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.

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Tools and Resources

• Resource Center– http://nationalserviceresources.org/criminal-

history– FAQs, regulations, fact sheets– Instructions on how to request an ASP– Staff screening Tool Kit, 3rd Edition

• ASP submission and status questions: ASPRequests@cns.gov. Contact Kim Hammonds, Office of Grants Management, khammonds@cns.gov, or 202.606.6968 for status information, confirm receipt, etc.