State Rap Back Implementation
A State rap back system under the National Background Check Program (NBCP) is a mechanism that allows a State’s Criminal Justice Information Services (CJIS) agency to immediately inform the NBCP grantee State agency of any new criminal history record information (CHRI) against an employee that arises after the employee’s pre-employment background check is completed. Once a State rap back system is in place, the State CJIS agency continuously checks employees’ existing fingerprint records against incoming CHRI (e.g., arrest or conviction information) to determine whether there are matches. If there is a match, updated CHRI about the employee is reported to the State agency that originally requested the background check. The grantee State agency is responsible for analyzing the CHRI and notifying the employer(s), as appropriate and in accordance with State rules and regulations.
What are the NBCP State rap back requirements?
What are the grantee State agency’s roles and responsibilities?
How do States pay for their rap back capabilities?
How does the State rap back process work?
What is a State rap back trigger?
What information is transmitted to the employee and employer?
How is information transmitted to the employee and employer?
How long do States retain fingerprints?
As stated in the Centers for Medicare & Medicaid Services’ NBCP solicitations, each participating State is required to develop and test a rap back system that allows its State CJIS agency to immediately inform the grantee State agency of any CHRI against the employee that occurs following the pre-employment background check.
The grantee State agency may be responsible for three parts of the State rap back process:
- The methods for identifying when new CHRI is available;
- The process of reviewing the CHRI and comparing it with the individual’s previous background check information; and
- The notification system for contacting the individual and the employer when there is new CHRI/a new fitness determination (the level of information the grantee State agency provides may be restricted by State rules or regulations).
The grantee State agency needs to have a process in place to recognize when new CHRI has been received. If the grantee State agency has a system integrated with its State CJIS agency’s system, it can receive electronic notifications of rap back information and enough identifying information to match the information to individuals’ records.
In addition, the grantee State agency needs a process to compare the new CHRI with the previous background check information for an individual. This is especially important if only new rap back information—not the full criminal history—is sent to the grantee State agency. The grantee State agency needs to be able to use any new information regarding arrests and/or convictions in reconsidering individuals’ employment eligibility, if appropriate.
The grantee State agency also needs to set up a process to notify employers and individuals of any new CHRI, if appropriate and allowed under State rules and regulation. In order to notify the employer, the grantee State agency must track where individuals currently work. The notification process is described in detail in the “What information is transmitted to the employee and employer?” section below.
Most grantee State agencies plan to fully automate their rap back systems. This would lead to shorter lag times from when information is recorded in the State CJIS agency CHRI database to when the information is matched and triggers a “hit.” In turn, this may allow the grantee State agency to receive the updated CHRI more quickly.
The State CJIS agency may use its budget to pay for rap back capabilities or, in some cases, grantee State agencies pay fees to their CJIS agencies for rap back services. In the latter example, various sources may be used to pay for the rap back system: State sources, Federal funding (for grantee States), and background check fees. Generally, State rap back fees are paid by the facility or provider and/or the applicant.
The 2008 Department of Justice “Report of the National Focus Group on the Retention of Civil Fingerprints by Criminal History Record Repositories” (prepared by SEARCH) indicated that having a flat fee for rap back services was the most workable payment mechanism as it ensures that the fingerprint retention fee will be paid. (See Additional Resource 1.) In addition, a flat fee allows for the applicant’s record to be accessed by another employer (if the applicant changes jobs) without additional fees.
From the time of the initial fingerprint submission, the State CJIS agency retains the fingerprints. Individuals are flagged in the State’s Automated Fingerprint Identification System (AFIS) by the State CJIS agency or the grantee State agency for inclusion in the rap back process. This requires extensive coordination between the CJIS agency and grantee State agency. Because the grantee State agency normally does not have access to the State’s AFIS (its system may not be electronically integrated with the AFIS), it is generally the State CJIS agency that is responsible for flagging individuals.
If the flagged individual commits any new offenses after the initial background check, the State CJIS agency sends updated information to the grantee State agency. The grantee State agency notifies the individual’s employer if the individual is no longer eligible for employment. (See the Tracking Long Term Care Employees resource document for more information on tracking the individuals’ current employers in order to make such notifications).
Most State rap back systems are triggered when an arrest or other criminal activity is entered into the State CJIS agency’s CHRI database for a flagged individual. Most grantee State agencies use any arrest or conviction that is reported in this database as a rap back trigger. Although this can create more work, it enables the grantee State agency to consider all relevant information when reviewing the rap sheet. Other information, such as driving record information, may be integrated into the State rap back system through a State traffic violation interface to ensure that employers have acceptable employee drivers.
Some States’ rap back systems send complete information to the grantee State agency using an electronic secure messaging system. Other States’ systems send limited information and require manual follow-up.
While there is variation in this area, grantee State agencies often do not send any offense-specific information to the employee or employer; rather, the grantee State agencies only inform them that the offense was disqualifying. However, some State agencies provide facilities and providers with relevant information to use to appeal the disqualification (if the facility or provider chooses to file an appeal). An example of a situation in which a facility or provider may want to appeal a disqualification is if an employee is convicted of driving under the influence, but the employee doesn’t drive a vehicle for work purposes and is a good employee. In this case, as the employer may want to retain the employee, an appeal would be filed.
In regard to notifying individuals, the grantee State agency normally sends a notification to the individual if there is disqualifying information. However, if the individual’s offense(s) is non-disqualifying, there is a wider range of possible actions the grantee State agency may take (e.g., send a notification to the employer and the individual, do nothing).
Grantee State agencies may choose to issue rap back hit notifications in several ways: through secure email, via a certified letter, or by telephone. The most common method of informing an employer is sending a secure email. The most typical method of notifying an employee is mailing a certified letter.
There is variation in fingerprint retention time periods across States. A survey taken by SEARCH on civil fingerprint retention found that for States that did retain fingerprints, the common time periods were: (a) retention until 99 years of age or deceased, (b) retention until a request is made by the flagging agency, and (c) retention until termination of employment or end of license. (See Additional Resources 2, 3, and 4.)
In addition, both the “Report of the National Focus Group on the Retention of Civil Fingerprints by Criminal History Record Repositories” and the “The Attorney General’s Report on Criminal History Background Checks” said that for privacy and security reasons there should be a cap on the time period for retaining fingerprints. (See Additional Resources 1 and 5.) Capped time periods are used to protect applicants by reducing the chances that fingerprints are used improperly. Although neither source referred to a specific recommended time period, both said that (1) there should be further study and (2) the State agencies should be setting the time periods in concert with State record retention laws.
- Report of the National Focus Group on the Retention of Civil Fingerprints by Criminal History Record Repositories; SEARCH, 2008. This document describes the National Focus Group’s findings regarding civil fingerprint retention in repositories. Accessed at: https://www.ncjrs.gov/pdffiles1/bjs/225204.pdf
- Civil Print Retention Survey Summary of Responses; SEARCH, November 2007. This document provides a summary of States’ responses to questions regarding the processing of fingerprints submitted to State repositories for noncriminal justice screening (referred to as civil fingerprints). Accessed at: http://www.search.org/files/pdf/CivilFingerprintRetentionSurvey.pdf
- SEARCH Survey of State Repository Services, April 2010. This document contains the results of SEARCH’s repository survey of all States. Accessed at: http://search.org/files/pdf/Survey_of_State_Repository_Services.pdf
- SEARCH Rap Back Survey Results, June 2010. This document contains the results of SEARCH’s State rap back survey of all States. Accessed at: http://www.search.org/files/pdf/RapBackSurveyResults-June10.pdf
- The Attorney General’s Report on Criminal History Background Checks; U.S. Department of Justice, Office of the Attorney General, June 2006. This document describes the Attorney General’s findings and recommendations on criminal history background checks. Accessed at: https://www.bjs.gov/content/pub/pdf/ag_bgchecks_report.pdf