New Head Start Background
Check Requirements DELAYED

The federal Office of Head Start (OHS) published a notice in the Federal Register on December 6, 2016 (the December notice) delaying until September 30, 2017 the compliance date for background check and selection procedures under the new Head Start Program Performance Standards. Until that date, Head Start programs must comply with the background check requirements in Section 648A(g) of the Head Start Act (42 U.S.C. § 9843a(g)). OHS delayed the effective date of the new background check rules in order to give programs additional time to implement systems to comply with the new rules. The new compliance date also aligns with the effective date of the background check requirements under the Child Care Development Block Grant (CCDBG) Act, alleviating the burden on programs that receive both Head Start and CCDBG funds. 
 

Impact of the Delay

The final Head Start Performance Standards published on September 6, 2016 require Head Start programs to conduct an interview, verify references, conduct a sex offender registry check, and obtain the following background checks for all Head Start staff (including transportation staff and contractors):

• Prior to hiring the staff member, the Head Start program must obtain either (1) a state or tribal criminal history check, including fingerprint checks or (2) an FBI criminal history check, including fingerprint checks.
   
• Within 90 days after hiring the staff member, the Head Start program must obtain whichever check (either the state/tribal check with fingerprints, or the FBI check with fingerprints) it did not obtain prior to hire. The program must also obtain a child abuse and neglect state registry check, if available.
   

• Programs must assess the relevancy of issues identified in all background checks, including any arrest, pending criminal charge, or conviction, and must use the Child Care and Development Fund (CCDF) disqualification factors described in 42 U.S.C. § 9858f(c)(1)(D) and 42 U.S.C. § 9858f(h)(1) to determine whether an employee may be hired or terminated.

Until the Head Start program completes the full background check described above, the newly hired staff member may not have unsupervised access to children. Programs are further required to conduct the complete background check for each staff member at least once every five years. 45 C.F.R. § 1302.90(b).

Several of these provisions were not going to take effect until August 1, 2017, including: the requirement that programs obtain a second criminal history check with fingerprints and a child abuse and neglect state registry check within 90 days of hire; the requirement that staff not have unsupervised contact with children until the full background check process is complete; and the requirement that programs conduct the full background check process on existing employees at least once every five years.

The December notice pushes back the effective date for all of the background check rules in the final Performance Standards until September 30, 2017. In the meantime, programs must comply with the criminal record check requirements in Section 648A(g) of the Head Start Act (42 U.S.C. § 9843a(g)), which requires that, before a Head Start agency employs an individual, it must:

• Interview the individual;
• Verify the personal and employment references provided by the individual; and obtain:
  • A state, tribal, or federal criminal record check covering all jurisdictions where the grantee provides Head Start services to children;
  • A state, tribal, or federal criminal record check as required by the law of the jurisdiction where the grantee provides Head Start services; OR
  • A criminal record check as otherwise required by federal law.

Thus, until September 30, 2017, Head Start programs are only required to obtain either a state, tribal, or federal criminal record check prior to hire. This check does not have to include a fingerprint-based check unless the Head Start program’s state laws (or another applicable federal law) require the program to conduct such a check. Also, while the Head Start Act requires that the background check be completed for all employees before hire, it does not include the language from the delayed background check provision of the Performance Standards requiring that the check be completed on contractors, including transportation staff. In addition, the clock on obtaining complete background checks for all existing employees, consultants, or contractors at least once every five years will not start to run until September 30, 2017.
 

Other Issues

While the delay in implementation of the new background check requirements is welcome news for Head Start grantees, it does not resolve all of the issues raised by the new rules. Several outstanding issues, on which CAPLAW has provided comments to OHS, include:

• Length of time required to obtain FBI fingerprint checks: An employer’s ability to run and obtain fingerprint-based checks is generally governed by state law. In many cases, states do not have a process in place to allow employers to obtain FBI fingerprint checks directly. Rather, state agencies (such as the state’s child care licensing agency) may be the only parties authorized to obtain the FBI fingerprint checks. In many states, the process to obtain the results of FBI fingerprint checks can take three to six months or longer. If Head Start programs are required to wait for the FBI fingerprint check results before they can hire Head Start staff to fill vacant positions, it may be difficult or impossible for them to maintain the staffing ratios required under the Performance Standards and state law. Moreover, candidates for these positions may seek employment elsewhere due to delays in getting confirmation of hiring.
  
  CAPLAW has requested that OHS secure a contractor through which Head Start grantees may obtain FBI fingerprint-based checks directly on an expedited basis, in the same way that the Corporation for National and Community Service (CNCS) has contracted with Fieldprint, Inc., which has been approved by the FBI to offer CNCS grantees expedited access to the FBI’s national criminal history information.
   

• Inability to obtain separate state fingerprint checks: Some states do not have a state fingerprint check that is separate from the FBI fingerprint check. Instead, those states may simply submit an individual’s fingerprints to the FBI for matching against state and national criminal history databases. Head Start programs in such states have no way of obtaining both a state and FBI fingerprint-based check, as required under the delayed background check requirements.
   

• Inability to obtain fingerprint checks for consultants and contractors who will not have unsupervised contact with children: Some states only allow child care programs to request fingerprint checks for individuals who have the potential for unsupervised contact with children. If these programs do not have a way to obtain fingerprint checks directly (without going through a state agency), they may not be able to comply with the new Performance Standards, which require them to obtain such checks for “employees, consultants, and contractors,” regardless of whether they have the potential to be in unsupervised proximity to children. 
   

• Head Start background check requirements are not fully aligned with CCDBG background check requirements: In the December notice, OHS indicated it believed that states would be able to implement the new Head Start background check requirements by September 30, 2017 because states that receive CCDBG funding are required to implement the CCDBG background check rules by that same date (unless they are granted a one-year extension). However, the CCDBG and Head Start requirements differ in some important respects. For example, the CCDBG background check requirements only apply to staff members who are either employees of the child care provider or whose activities involve the care or supervision of children or unsupervised access to children (42 U.S.C. § 9858f(i)(2)). As discussed above, the Head Start Performance Standards go further, requiring background checks for consultants and contractors even if they will not have unsupervised access to children. Thus, whether states that are developing CCDBG-compliant systems will be prepared to process background checks that meet Head Start requirements remains to be seen.

CAPLAW encourages CAAs with Head Start programs that have encountered other issues relating to the new background check requirements under the final Performance Standards to share your experiences with us, to enable us to provide additional comments to OHS on these matters. CAPLAW is also available to assist CAAs with Head Start programs with individual questions about how to comply with the new Performance Standards.
 

This News Flash is part of the Community Services Block Grant (CSBG) Legal Training and Technical Assistance (T/TA) Center. It was created by Community Action Program Legal Services, Inc. (CAPLAW) in the performance of the U.S. Department of Health and Human Services, Administration for Children and Families, Office of Community Services Cooperative Agreement – Grant Award Number 90ET0441-03. Any opinion, findings, conclusions, or recommendations expressed in this material are those of the author(s) and do not necessarily reflect the views of the U.S. Department of Health and Human Services, Administration for Children and Families.