Adding FBI Criminal History Record Checks to a State Background Check Program

A key component of the National Background Check Program (NBCP) as described in Section 6201 of the Patient Protection and Affordable Care Act (Affordable Care Act) is the electronic submission of a prospective long term care (LTC) employee’s fingerprints to the Federal Bureau of Investigation (FBI) for a criminal history check. The FBI has specific requirements for the submission process and for safeguarding criminal history check findings. These requirements may differ from State-only fingerprint check requirements to the State’s Criminal Justice Information System (CJIS) agency —typically a State law enforcement agency such as the State Police, Department of Public Safety, or State Bureau of Investigation. A State’s CJIS agency communicates directly with the FBI and must coordinate carefully with them General information about fingerprinting is in reference [1].

The following topics will be covered in this paper:

The Criminal History Record Information (CHRI) provided by the FBI in response to a criminal history record (CHR) request
Legislative options recommended to NBCP States to require FBI checks
Cost of FBI checks
Advantages and disadvantages to incorporating FBI checks
Availability of FBI Rap Back and its potential impact on the NBCP

What data does the FBI provide?
How does a State obtain authority to submit fingerprints to the FBI?
How long does an FBI check take?
What does an FBI check cost?
What are the advantages and disadvantages of an FBI check?
When will Federal rap back be available for the NBCP?
Additional Resources

What data does the FBI provide?

When an applicant’s fingerprints are submitted for a CHR check, they are entered into the FBI’s Integrated Automatic Fingerprint Identification System (IAFIS), a database that contains the fingerprints of more than 70 million individuals. IAFIS is also linked to a database of criminal event reports called the InterState Identification Index (III).

The FBI provides one of three types of responses to the submission: 1) no identity found (“no hit”) message; 2) rejection due to poor quality or invalid data (“ERRT”) message; or 3) an Identity History Summary (“hit,” or rap sheet), also known as CHRI. The CHRI returned in a “hit” response for a prospective LTC employee would be:

A listing of certain information taken from fingerprint submissions retained by the FBI in connection with arrests and, in some instances, federal employment, naturalization, or military service.

If the fingerprints are related to an arrest, the Identity History Summary includes the 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. [2]

The III database contains CHRI submitted to the FBI by Federal, State, local, tribal, and certain foreign criminal justice agencies. [3] There are limitations to the FBI’s data; these are discussed in the section on disadvantages later in this document.

The FBI CHRI also can include a check of the National Sex Offender Registry (NSOR). The Pam Lychner Sexual Offender Tracking and Identification Act of 1996 (Lychner Act) required the Attorney General to establish a national database at the FBI to track the whereabouts and movements of certain convicted sex offenders under Title 42 of the United States Code Section 14072. The National Crime Information Center (NCIC) run by the FBI enables the NSOR to retain the offender’s current registered address and dates of registration, conviction, and residence.

The Lychner Act imposed two major obligations on the FBI that became effective October 3, 1997:

1. To establish a national database that tracks the location and movements of each person who has been convicted of a criminal offense against a victim who is a minor, has been convicted of a sexually violent offense, or is a sexually violent predator.

2. To register and verify the addresses of sex offenders who reside in states without a “minimally sufficient” sex offender registry (SOR) program. Today, all 50 states have minimally sufficient SOR programs.

Under the Act, the FBI may release relevant information to federal, state, and local criminal justice agencies for law enforcement purposes only. Public notification will only be made if it is necessary to protect the public. However, the Act specifically states that in no case shall the FBI release the identity of any victim of an offense that required registration of a sex offender. [4]

How does a State obtain authority to submit fingerprints to the FBI?

The FBI requires a requestor to have specific statutory authority before it will accept and respond to requests for CHR checks. This section identifies statutes and directives that some States have used as the authority to obtain Federal CHRI on prospective LTC employees and delineates which are appropriate for State programs that comply with Section 6201 of the Affordable Care Act.

Options appropriate for NBCP

There are two options for NBCP States to consider when establishing their legal authority to request and receive CHRI from the FBI on prospective LTC employees:

1. Public Law 92-544. This is the authority that most NBCP grantee States have used effectively. Pursuant to that law:

The FBI is empowered to exchange Identity History Summary information with officials of State and local governments for employment and licensing, which includes volunteers, and other similar non-criminal justice purposes, if authorized by a State statute which has been approved by the Attorney General of the United States. The … State statute establishing guidelines for a category of employment or the issuance of a license must, in itself, require fingerprinting and authorize the governmental licensing or employing agency to exchange fingerprint data directly with the FBI. [5]

The advantages of a State statute under Public Law 92-544 authority include the following:

The Public Law 92-544 framework enables a statewide eligibility determination;
A State statute provides a mechanism for the State to specifically authorize Rap Back;
Facilitates the Rap Back notifications required under the NBCP.

These advantages add efficiency and reduce duplicate fingerprinting.

One considerable disadvantage occurs when specific State legislative authority is required, but does not already exist. State legislation is generally required to authorize provisions of the NBCP and can be problematic and time-consuming to enact. Prior to implementation, the Public Law 92-544 approach requires legislative involvement by the State CJIS agency and a review of the State’s submission language by the FBI CJIS Division.

2. Public Law 111-148, Sect. 6201. State agencies may submit fingerprints to the FBI and receive responses using the authority of Section 6201 of the Affordable Care Act. This has been used effectively in cases where additional legislative authorization is not required by the State or where the granting of State legislation under Public Law 92-544 may be lengthy and a preliminary or voluntary program was being implemented by the State agency. Grantee States in both of these circumstances have submitted fingerprints using the authority of Section 6201 of the Affordable Care Act’s provisions. The FBI requires that the State agency coordinate fingerprint submissions and responses with the State’s CJIS agency, and it specifies other items needed for fingerprint submissions. [6]

A significant advantage of using Public Law 111-148 authority is that in some circumstances, it can be implemented quickly. The disadvantage of using Public Law 111-148 authority is that it might not authorize other provisions of the NBCP that the State CJIS agency may require.

Options inappropriate for NBCP

States sometimes consider two other authorizations for FBI CHRI checks; neither is appropriate to use for the NBCP for the reasons listed below:

1. U.S. Department of Justice Order 556-73. This directive, known as DO 556-73, was issued to allow a person to request and receive their own Identity History Summary. Only the individual requesting the check is allowed to receive the CJIS response. This option is not intended to be used to secure employment, for a variety of reasons, some of which are described below:

An Identity History Summary search obtained pursuant to U.S. Department of Justice Order 556-73 may not meet employment requirements. Governmental licensing or employing agencies covered by federal laws and/or State statutes may refuse to accept identity history record information directly from the subject of the record, as there would be no way to verify that the information contained on the record had not been altered. Also, an Identity History Summary provided to the subject for personal review contains only information maintained by the CJIS Division and may lack dispositional data and/or arrest records that are maintained only at the State level. [7]

There are several additional reasons that CHRI provided under DO 556-73 is not suitable for NBCP employment screenings. The request and response cannot be routed through the State’s determination agency; the fingerprints are not submitted via the State CJIS agency and therefore cannot be retained for rap back; and there will be no notification of any subsequent criminal history.

2. Public Law 105-277, Section 124. This section of Public Law 105-277 specifically allows nursing facilities (NFs) and home health agencies (HHAs) to submit fingerprints through a State CJIS agency to the FBI, and to receive the responses. The option has several appealing features, but each one has a corresponding drawback that makes it unsuitable for use in a NBCP-compliant State program.

Public Law 105-277 does not require States to enact implementing legislation; but this shortcut does not allow the State agency to verify that disqualifying offenses were properly considered or to establish which categories of worker were checked, and it does not enable the State to monitor the number and usage of FBI checks. The law gives NFs and HHAs access to the CHRI provided by the FBI, but it does not authorize the State determination agency access to that information. The NF or HHA can make a hiring decision, but a State eligibility determination that could be leveraged by other LTC providers (including other NFs or HHAs) is impossible. Further, for NFs and HHAs (two large segments of the LTC industry), statewide background check determinations and rap back would be excluded from the State’s process if Public Law 105-277 authority is used.

The NF or HHA can make a hiring decision, but a State eligibility determination that could be leveraged by other LTC providers (including other NFs or HHAs) is impossible. Further, for NFs and HHAs (two large segments of the LTC industry), statewide background check determinations and rap back would be excluded from the State’s process if Public Law 105-277 authority is used.

How long does an FBI check take?

Electronic fingerprints can be processed and responses generated much faster than card-based (ink and roll) fingerprints. The current standard response goal is 24–48 hours. However, many NBCP States experience substantially faster response times, varying from a few minutes to several hours. [3]

What does an FBI check cost?

The FBI charges a fee to process fingerprints and provide a response. The FBI CJIS Division reviews costs and makes adjustments approximately every two years, documenting them in an FBI-issued CJIS Information Letter distributed to State CJIS agencies. The most recent adjustment resulted in an FBI electronic processing fee of $16.50 (excluding rap back), effective March 19, 2012. Complete information is in CJIS Information Letter 12-1. [8]

Because most applicant fingerprints submitted for an FBI response are first sent to the State CJIS agency, it will often collect both the State fee and the FBI fee. In these cases, the State CJIS agency is the “Central Billing Service Provider,” and the State determination agency does not need to track payment to the FBI. State agencies administering the NBCP should verify the current fee for an FBI check with their State CJIS agency.

What are the advantages and disadvantages of an FBI check?

The advantages and disadvantages of FBI CHR checks versus State name or fingerprint-based checks are described in Tables 1 & 2, below:

Table 1. Advantages of FBI Checks

Item	Description	Impact
Interoperability/Data aggregation from all States	With the exceptions of the Western Information Network (WIN, an interoperability system that exists between western States) and NOVARIS (an interoperability system that exists between certain jurisdictions in Northern Virginia and Maryland), CJIS agencies from other States do not routinely provide responses to a CHR request submitted to one State CJIS.	Only an FBI criminal history record check in one State uncovers arrests, charges, and/or convictions recorded in a different State, even if the applicant’s fingerprints are provided.
Federal offenses	NBCP requires that persons convicted of certain Federal offenses, such as a felony relating to Federal health care fraud, are to be disqualified from employment in LTC facilities. Such Federal offenses are not reported to State CJIS CHR repositories, and thus are not reported in a State check, even if the criminal act occurred in that State.	An FBI check provides information about Federal offenses, including Federal contract and health program fraud, conspiracy, and other offenses that are not violations of State-specific laws.
National registries	The National Sex Offender Public Website (NSOPW) is a federally maintained registry that many States require to be checked for all LTC employment applicants. There is no automated interface for States to access this website; manually entering the demographic information for each applicant is required. Other federal databases also exist but require a separate information entry.	Upon request, an FBI background check also will search the NSOPW; results are included with the criminal history record. Once fully implemented, the FBI’s Next Generation Identification (NGI) program will also include searches of the federally maintained Immigration Violator File.

Table 2. Disadvantages of FBI Checks

Item	Issue	Impact	Mitigation
Cost	There is a fee for each set of fingerprints checked.	LTC employers or applicants pay more for the initial background check.	FBI has implemented a Federal rap back capability and made it available for States to integrate. If and when State CJIS agencies integrate with the FBI rap back, this federal rap back will reduce the number of FBI CHR checks that employers will be required to obtain under NBCP.
Image rejection	The FBI’s larger database and electronic processing require a higher-quality fingerprint, resulting in a greater likelihood of rejection due to poor image quality.	Rejected fingerprints result in delays, require additional communications, and cause inconvenience to the applicant to have the fingerprints retaken.	Electronic fingerprinting via live scan eliminates many low-quality prints. Also, a sophisticated background check management system can detect reject messages and process them electronically, resulting in faster notification to employers and applicants that reprints are needed.
Privacy and security requirements	Privacy and security requirements associated with FBI checks may differ from State-only checks. In addition, Rap Back institutes new privacy requirements.	Additional data exchanges are required between employers, the State CJIS agency, and the FBI to allow Rap Back only for persons who are still employed.	The FBI has outlined a variety of options to ensure that only the appropriate Rap Back records are returned. Automated data exchanges using a background check management system minimize the maintenance effort.
Incomplete criminal history	Usually State CHRI databases contain more information than what the State may send to the FBI. As a result, the FBI database may not contain all the data needed to determine whether the person should be allowed to work under the State’s rules.	Additional research is required to resolve the missing information; often this requires additional staff time for the State agency.	A list of contact information for court and law enforcement records and a crosswalk of criminal code citations commonly seen from other States will make the research process more efficient for the State agency. Some States require the job applicant to provide any information that may be required to resolve missing CHRI.

When will Federal rap back be available for the NBCP?

Background checks provide a snapshot of an individual’s criminal history status on the date the fingerprints are checked against the data repository. The FBI has been working to replace IAFIS with a faster and more sophisticated identification system called Next Generation Identification (NGI). In September 2014, NGI began to offer a Federal Rap Back capability that allows authorized State agencies to receive immediate notifications from the FBI in much the same way that State rap back now functions. The FBI’s Federal Rap Back Non-Criminal Justice Implementation Guide for State agencies is now available.[9] With Federal FBI Rap Back, authorized agencies can receive on-going status notifications of any future arrest or criminal history for that individual reported to the FBI. The FBI initially proposed a rate schedule for authorized entities to enroll in the Rap Back notification service. Upon further review, the FBI determined that there would be no fee for Rap Back.

Retention of civil applicant fingerprints for use in on-going Rap Back and associated reporting is managed very carefully by the FBI. Retention and searching of FBI civil fingerprints is authorized only for people whose employment, license, or other benefit requires that the individual not commit a prohibited criminal action. State NBCP agencies must coordinate with their State CJIS agency to request and access the new capabilities. Many State CJIS agencies are currently coordinating their respective States’ implementation of Federal Rap Back.

Additional Resources

Fingerprinting as Part of the Background Check Process, NBCP TA Resource Paper. Available at: http://bgcheckinfo.cna.org/resources/state-specific-technical-assistance/fingerprints
Identity History Summary Checks, FBI CJIS website. Available at: https://www.fbi.gov/services/cjis/identity-history-summary-checks
Description and guidance on the III segment of IAFIS, I-2.3, FBI website. Available at: https://www.fbi.gov/services/information-management/foipa/privacy-impact-assessments/firs-iafis
Background on the National Sex Offenders Registry, FBI website. Available at: https://www.fbi.gov/scams-and-safety/sex-offender-registry
Identity History Summary Checks for Employment and Licensing, FBI CJIS website. Available at: https://www.fbi.gov/services/cjis/identity-history-summary-checks#Identity-History Summary Checks for Employment or Licensing
Guidance on Implementation of the NBCP Established by the Secretary of U.S. DHHS Pursuant to Section 6201 of the PPACA. Letter from FBI CJIS Division to All State CJIS System Officers/State Bureaus of Identification (CSO/SIB), August 26, 2011. Available at http://bgcheckinfo.cna.org/sites/default/files/public/CSOSIBletter08262011.pdf
Guidance on Production of FBI Identification Records in Response to Written Requests by Subjects, FBI CJIS website. Available at: https://www.fbi.gov/services/cjis/identity-history-summary-checks
CJIS Information Letter 12-1; DOJ, 2012. This letter documents the fee schedule for FBI Fingerprint-based Criminal History Checks for employment. Available at: https://www.fbi.gov/services/cjis/cjis-link/need-to-know-user-fee-changes-cjis-information-letters-on-leo
Next Generation Identification (NGI) Program Rap Back Service Policy and Implementation Guide; DOJ, 2014. This document refers to the non-criminal justice use of NGI’s Rap Back Service. Available at: http://bgcheckinfo.cna.org/sites/default/files/public/NGI_Rap_Back_Non-Criminal_Justice_Policy_and_Implementation_Guide_Version_2-1_2014_06_01.pdf