ACF-PI-HS-16-05 Attachment

Comprehensive Background Check Standards

Q: What are the required components of a comprehensive background check?

A. The Head Start Program Performance Standards (HSPPS) for background checks in 45 CFR §1302.90(b) went into effect Sept. 30, 2021, and require all Head Start programs to conduct a total of four components of a comprehensive background check: two components prior to employment and two components within 90 days of hire.

Prior to employment, the two required components are: 1) a criminal history with a fingerprint check (this can be either a state/tribal or an FBI criminal history with fingerprint check) and 2) a sex offender registry check (any available, including a National Cybersecurity and Communications Integration Center National Sex Offender Registry (NCCIC NSOR) check).

Within 90 days of hire, the last two required components are: 3) a child abuse and neglect state registry check (if available) and 4) a criminal history with a fingerprint check (whichever of the state/tribal or FBI checks was not conducted prior to employment). Programs must conduct complete background checks at least every five years. See question on five-year requirement below for more details on this component.

Note: In addition to the above requirements, Head Start programs that are licensed, regulated, or registered by their state must also meet the background check requirements in the Child Care and Development Fund (CCDF) Final Rule. See section below on intersection between HSPPS and CCDF Final Rules.

Q: Why were the standards for background checks changed and when did they go into effect?

A. The HSPPS for comprehensive background checks were changed to align with the requirements of the 2014 reauthorization of the Child Care and Development Block Grant (CCDBG) and to help ensure the safety of all children in Head Start programs. States were required to demonstrate compliance with the CCDBG background check requirements by Sept. 30, 2021, during the submission period for 2022-2024 CCDF Plans. The Head Start standards were delayed until Sept. 30, 2021, to minimize burden on grantees while state background check systems became fully implemented by states. As of Sept. 30, 2021, the HSPPS for comprehensive background checks are in effect.

Components of the Comprehensive Background Check

Q: My state Department of Investigation includes fingerprint and clearance, as well as a clearance through the Federal Bureau of Investigation (FBI) database. Do I still need to conduct an FBI criminal record check with fingerprints?

A: Yes. While state and FBI criminal background checks significantly overlap, they are not the same check and do sometimes include differential information. See 45 CFR §1302.90(b).

Q: If a state conducts a child abuse and neglect (CAN) check as part of their state background check already, is our agency required to run an additional check through the state registry separate from the one already provided through the state and FBI criminal record check?

A: If the state includes a CAN registry check as part of its background check, an agency does not need to rerun the CAN registry check. Criminal record checks and CAN registries may have some overlap (particularly in instances where there is a conviction related to child abuse or neglect); however, CAN registries may also include information on substantiated complaints or civil court findings. Many states do include searches of their CAN registries as a component of a background check, particularly when the individual is working with children.

Q: What is the difference between the sex offender registry check and a criminal history check? Why would someone be on the registry but not have a record on the FBI or state check? Would the FBI or state criminal history check be sufficient or do we need to run it through the national sex offender registry as well?

A: The difference between a sex offender registry and a criminal history records check is significant. A sex offender registry monitors and tracks sex offenders after their release into the community. A criminal history records check typically reveals whether or not a person has any arrests, convictions, outstanding warrants, and prison terms. However, a person may be ordered to register as a sex offender in cases that would not be included on a criminal history records check (e.g., as a condition for release into the community or as a part of a plea agreement).

We require programs to conduct a sex offender registry check. We anticipate most programs will likely check their state’s sex offender registry, but we do not prescribe which registry must be checked. Head Start programs may check a state’s sex offender registry database, request a check of the NCCIC NSOR, if available, or use the National Sex Offender Public Website to fulfill this sex offender check requirement.

Checking Employees Every Five Years

Q: In the standards, 45 CFR §1302.90(b)(5) requires current employees to be cleared every five years. Do all current staff need to have two sets of fingerprints on file as of Sept. 30, 2021 as well? Do we need to do a background check on employees who have been here longer than five years now, or should all employees be cleared every five years from now?

A: In 45 CFR §1302.90(b)(5), the standards state that "a program must conduct the complete background check for each employee, consultant, or contractor at least once every five years…" This requirement on current employees is effective as of Sept. 30, 2021. Therefore, programs must ensure they conduct a complete background check on all current staff, every five years. This means currently employed staff would need a complete background check by Sept. 30, 2026, and every five years after the date of each individual check. Programs may wish to stagger their approach to completing checks for current employees so that the financial obligation associated with such checks is dispersed more evenly from year to year.

Q: In the standards, 45 CFR §1302.90(b)(5) states that "a program must conduct the complete background check for each employee, consultant, or contractor at least once every five years" based on the requirements in (b)(1) and (2). Are programs expected to re-interview and re-verify references of current employees when they reach the five-year mark?

A: There is no requirement to interview current employees and to verify references they provided before they were hired or to ask them for more references. Section 302.90(b)(5) states "a program must conduct the complete background check for each employee, consultant, or contractor at least once every five years, which must include each of the four checks listed in [45 CFR §1302.90 (b)(1-2)]." The key language here is the "four checks," which references the sex offender registry check, CAN state registry check, state or tribal criminal history check with fingerprints, and FBI criminal history check with fingerprints.

Q: 45 CFR §1302.90(b)(5) provides an exception to performing background checks for all employees every five years if "the program can demonstrate to the responsible Department of Health and Human Services (HHS) official that it has a more stringent system in place that will ensure child safety." What constitutes a "more stringent system" and how can it be demonstrated?

A: We require each program to adhere to 45 CFR §1302.90(b)(5), which requires background checks for all employees every five years, unless it can demonstrate to the responsible HHS official that it has a system in place will provide more frequent checks than every five years, as required under HSPPS. An example of a more stringent system is a “rap back” program that automatically notifies a program when an employee is either arrested or convicted of an applicable offense; in this example, the program would be continually informed of criminal offenses which would be more stringent than a check every five years. Initial background checks must be completed to ensure child safety, regardless of any system a state or program has in place.

Employees, Consultants, and Contractors

Q: The standards specify employees, consultants, and contractors must have a complete background check. The majority of the consultants we are referring to are those that work with management and do not provide services to children and families. Do the criminal background checks apply to short-term program consultants or contractors who work with management and do not provide services to children?

A. No, the criminal record check requirements only apply to contractors, or individuals on a contract, whose activities involve contact with and/or direct services to children and families or anyone who could have unsupervised access to children and families. However, the criminal record check requirements apply to all employees, regardless of whether an employee has contact with and/or direct services to children and families.

Q: Do the standards require that anyone going into Head Start classrooms, including school district employees (e.g., special education paraprofessionals, substitutes, etc.), undergo a complete background check as described in 45 CFR §1302.90? The school district maintains personnel files on all employees, including substitutes, with fingerprint records for background checks and would like to keep these records confidential. Is this okay?

A: Agencies must conduct or obtain a complete background check for contractors, or individuals on a contract, whose activities involve contact with and/or direct services to children and families or anyone who could have unsupervised access to children and families. However, if a program works with a school district or other agency that conducts the background checks according to the requirements in 45 CFR §1302.90, a program could obtain confirmation that the personnel in question had the appropriate checks and were employable according to the state’s disqualification factors, and the program would be meeting the Head Start background check requirements.

State Background Check Processes

Q: My state won’t provide background check results to our program because of confidentiality rules. Instead, they give us a "green light" or "red light" for employing a person in an early childhood setting. Does this meet the state background check requirement in 45 CFR §1302.90(b)?

A: Yes. A state’s "green light" or "red light" based on the CCDF disqualification factors meets the requirements in 45 CFR §1302.90(b).

Q: I reached out to my state Bureau of Investigation, and they said they won’t do background checks on our employees because Head Start programs don’t fall under the categories of institutions that can request a background check under state law. What do I do?

A: States are required to meet CCDF background check requirements, which include performing checks for all child care agencies/entities that are licensed, regulated, or registered or that are eligible to receive CCDF subsidy funds. Head Start programs generally fall under that umbrella, and as such, Head Start programs should be able to access state background check systems at this time. You may need to go back to your state Bureau of Investigation to explain that as a licensed, regulated, or registered program in the state, Head Start employees, contractors, and consultants meet the definition of staff under the CCDBG federal authority. In some states, programs have contracted with private vendors to conduct their background checks. Programs that continue to experience challenges with state systems that do not recognize Head Start programs as eligible to participate should contact their Regional Office or reach out to their CCDF Lead Agency to help coordinate the background check process.

Q: My program is license-exempt (or unregistered, unregulated) in my state. How do I perform these background checks if I am having difficulty accessing the state’s background check systems?

A. Programs may be able to use the National Child Protection Act of 1993 (Pub. Law 103-209) as the authorizing statute to allow them to access the state’s background check system. Under the National Child Protection Act, states establish background check procedures that require qualified entities designated by the state to contact an authorized agency of the state to request a national background check. Programs may also be eligible to access the state’s Volunteer Employee Criminal History Services (VECHS) Program, if available in their state. Programs should contact their state Bureau of Investigation to see if the VECHS program in available in their state. The VECHS programs allow public or private, for-profit, nonprofit, or volunteer organizations (not individuals) that provide care or care placement services to any child, elderly person, or person with disabilities to obtain access to a fingerprint-based criminal history check for their employees and volunteers. Note that VECHS programs are not available to organizations that are required to obtain criminal history record checks under another statutory authority such as CCDBG, so this is likely only an option for unlicensed, unregistered, or unregulated programs. Programs that continue to experience challenges accessing their state systems should contact their Regional Office.

Intersection Between the HSPPS and CCDF Requirements

Q: What are the differences between the Head Start background check standards and the CCDF background check requirements?

A. The Head Start standards require four components of a comprehensive background check — two prior to hire: 1) a criminal history with a fingerprint check (this can be either a state/tribal or an FBI criminal history with fingerprint check) and 2) a sex offender registry check (any available); and two within 90 days of hire: 3) a child abuse and neglect state registry check (if available) and 4) a criminal history with a fingerprint check (whichever of the state/tribal or FBI checks was not conducted prior to employment).

The CCDF Final Rule requires checks of both the state criminal history with fingerprints and the FBI criminal history with fingerprints, as well as: 1) an NCCIC NSOR name-based check and 2) inter-state checks on criminal history, sex offender registry, and CAN in each state where the individual has resided within five years. All of the components of the CCDF checks must be completed within 45 days of hire. The CCDF Final Rule applies to all individuals employed by: 1) all licensed, regulated, or registered providers under the state law (including licensed/regulated/registered Head Start programs); and 2) all providers eligible to deliver CCDF-funded services, including license-exempt Head Start programs receiving CCDF subsidy funding for direct services.

Q. Do Head Start programs that are licensed, regulated, or registered by the state need to comply with both the HSPPS and CCDF Final Rule requirements?

A. Yes. If a state requires a Head Start program to be licensed, regulated, or registered, the program must comply with the CCDF background check requirements and the HSPPS. This means that licensed, regulated, or registered Head Start programs must conduct both the NCCIC NSOR check and their state sex offender registry check (if available) and the inter-state checks to comply with both sets of requirements. The program must complete either the state/tribal or FBI criminal history check with fingerprints before hire to comply with the HSPPS, and then both state/tribal criminal history checks and FBI criminal history checks with fingerprints must be completed during the 45-day provisional hire period (rather than the 90 days allowable under the HSPPS) to comply with the CCDF Final Rule. While awaiting their complete background check, staff may work with Head Start children as long as they have received satisfactory results from the state/tribal or FBI criminal background check with fingerprints and are supervised by someone who has completed a background check in the previous five years.

Note: OCC has issued policy guidance and a technical assistance guide stating that an FBI fingerprint check also satisfies the requirement to perform an interstate check of another state’s criminal history record repository if the responding state (where the child care staff member has resided within the past five years) participates in the National Fingerprint File (NFF) program maintained by the FBI. Thus, states are not required to conduct separate interstate criminal background checks of other states participating in the NFF program.

Q: Do Head Start programs that are exempt from state licensing need to comply with both the HSPPS and CCDF Final Rule requirements?

A. The background check requirements in the CCDBG Act and CCDF Final Rule apply to all licensed, regulated, or registered child care programs/providers, regardless of whether they receive CCDF funds, and all license-exempt programs/providers that receive CCDF subsidy funds. If a license-exempt Head Start program is receiving CCDF funding to provide direct serves to CCDF children, the program is subject to the CCDF Final Rule background check requirements. The CCDF background check requirements do not apply to license-exempt Head Start programs that are receiving CCDF funding for the sole purpose of carrying out quality set-aside activities.

Q: My state will not conduct just one component of the comprehensive background check at a time, but rather “bundles” the state and FBI criminal history checks and NCCIC NSOR check and runs those checks simultaneously, so I cannot get results from just the state criminal history check with fingerprints. Does this mean I cannot hire an employee until I have received the entire bundled set of results?

A. Yes. Based on the wording of the Head Start standards, you cannot hire an employee, consultant, or contractor until you have received the results of either the state or FBI criminal history check with fingerprints. Note: the NCCIC NSOR check is not required for Head Start programs, but is required for state-licensed, regulated, or registered programs, which may include Head Start programs.

Other Issues/Questions

Q: Who should I reach out to if I still have questions or am having trouble completing comprehensive background checks in my state?

A. You may reach out to any of the following for assistance: regional staff, Head Start State Collaboration Office, state CCDF Lead Agency, or state Bureau of Investigation.

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Last Updated: September 29, 2023