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Questions and Answers on Criminal Background Checks and Reporting of Child Abuse and Neglect

Questions and Answers on FSH 2709.11, Section 52.3, Clauses C-14 and C-15

Criminal Background Checks and Reporting of Child Abuse and Neglect

April 4, 2013

A 2011 audit conducted by the U.S. Department of Agriculture, Office of Inspector General, of the Forest Service's Special Uses Program revealed the need for improvement in several areas of the program, including inspection and monitoring of special uses. Effective inspection and monitoring are key to addressing public safety in the special uses program.

In response to the audit, the Forest Service has taken several steps to enhance the effectiveness of inspections and monitoring, including transitioning from an inspection schedule to prioritization of inspections based on standard criteria. Pursuant to the Crime Control Act of 1990 (CCA), the Agency identified the health and welfare of children under the age of 18 engaged in certain activities on National Forest System lands as a public safety standard that should be included in the inspection criteria.

There are two provisions of the CCA that apply to special use permits where the holder, holder's employees, or holder's agents provide child care services to children under the age of 18:

  • 42 U.S.C 13031 requires those engaged in certain activities on Federal lands or in facilities operated under a Federal contract to report suspected child abuse as soon as possible to the appropriate agency and identifies those subject to the reporting requirement.
  • 42 U.S.C 13041 requires a criminal background check for those who are employed under a contract with the Federal Government and who provide child care services to children under the age of 18.

Criminal Background Checks

1. What was the impetus behind clauses C-14 and C-15?

The CCA requires every facility operated under a contract with the Federal Government to get a criminal background check for employees who provide child care services to children under the age of 18 (42 U.S.C. 13041(a)(1)).

"Child care services" is defined in the CCA to mean child protective services (including the investigation of child abuse and neglect reports), social services, health and mental health care, child (day) care, education (whether or not directly involved in teaching), foster care, residential care, recreational or rehabilitative programs, and detention, correctional, or treatment services (42 U.S.C. 13041(a)(2)).

2. When does the CCA apply to special use permits?

The CCA applies to special use permits authorizing activities or facilities that involve the provision of child care services as defined in the CCA to children under the age of 18, including but not limited to day care facilities, organizational camps, schools for children, outfitting and guiding for children, and commercial filming and still photography involving children.

Criminal background checks are required for holders, holder's employees, or holder's agents who provide child care services to children under the age of 18. For example, when a youth organization such as the Boy Scouts of America contracts with a holder to provide child care services for children under the age of 18, the providers of those services are subject to CCA requirements.

Criminal background checks are not required for holders, holders' employees, or holders' agents who do not provide child care services to children under the age of 18, such as food service employees and ski lift operators. Holders, holders' employees, or holders' agents who provide educational or recreational programs for children under the age of 18 who are always accompanied by a parent or legal guardian are not providing child care services for purposes of the CCA. These children are under the parent's or legal guardian's supervision and are therefore not being provided child care services by the holders, holders' employees, or holders' agents. Therefore, clause C-14 or C-15 does not apply to authorized educational or recreational programs for children under the age of 18 if the holder documents that they are always accompanied by a parent or legal guardian.

3. Does the CCA apply to facilities on private land?

No. The CCA does not apply to facilities and services provided on private land.

4. If state law exempts the permit holder from the requirement to conduct criminal background checks for those providing child care services, is the holder still required to conduct criminal background checks under the CCA?

Yes, the CCA preempts state law to the extent it conflicts with the CCA. The requirement under the CCA to conduct criminal background checks overrides any state law that provides an exemption from that requirement.

5. Should existing permits be amended to include clause C-14 or C-15?

For existing permits subject to the CCA, inform holders of the applicability of the CCA under the standard permit clause that requires compliance with all applicable law. Give these holders the option to amend their permit to include clause C-14 or C-15. If they decline to amend their permit, include clause C-14 or C-15 when their permit is amended to accommodate a modification (new facilities or uses or adjustment of the permit boundary) per 36 CFR 251.61 or when their permit is reissued due to a change in ownership or control of the business entity. If an inspection determines that a holder is not in compliance with the CCA, issue a notice of noncompliance that gives the holder a reasonable period of up to 90 days to comply with the CCA and clause C-14 or C-15, if applicable.

6. How quickly must holders conduct criminal background checks for existing employees who provide child care services to children under the age of 18?

Provide holders a reasonable period of up to 90 days from the date of notification to conduct a criminal background check for existing employees who are providing child care services to children under the age of 18. Require holders to conduct a criminal background check for new employees before they are hired if they will be providing child care services to children under the age of 18.

7. Which employees are required to have a criminal background check?

All individuals, including the holder, holder's employees, and holder's agents, who provide child care services to children under the age of 18 in connection with the authorized activities or facilities are required to have a criminal background check. Foreign workers are not exempt from this requirement.

8. Who is responsible for conducting criminal background checks, the holder or the Forest Service?

The holder.

9. How does the holder get criminal background checks?

Many state law enforcement agencies provide services for conducting criminal background checks. The holder also can seek information and advice from local law enforcement agencies on obtaining background checks. In addition, several companies provide services for conducting criminal background checks. Criminal background checks for foreign workers may take additional time. Permit holders should plan accordingly.

10. Are fingerprints required?

Yes. The CCA requires the use of fingerprints for conducting criminal background checks. Furthermore, the CCA requires that fingerprinting checks be conducted through the U.S. Federal Bureau of Investigation (FBI) and the criminal history records for each state in which an employee lists a current or former residence. Fingerprinting services are provided by state and local law enforcement agencies. The FBI also provides this service for a small fee.

11. Should child abuse and sex offender registries be included as part of a criminal background check?

Although not required by the CCA, the holder might find it useful to check state central child abuse registries and Federal and state sex offender registries when conducting criminal background checks.

12. How far back does a criminal background check have to go-5 years, 7 years, 10 years, or some other timeframe? What if a state does not set a timeframe?

The CCA does not specify a timeframe for conducting criminal background checks. Each state addresses this issue differently. Holders are responsible for complying with state requirements for conducting criminal background checks in the states in which they provide child care services to children under the age of 18. Holders can consult with state and local law enforcement agencies regarding these requirements.

13. What is the holder's responsibility when a criminal background check identifies that an employee who provides child care services to children under the age of 18 has been convicted of a crime?

Must that employee be terminated? Would a traffic offense or minor drug possession be cause for termination? The holder, not the Forest Service, is responsible for compliance with the requirement to conduct a criminal background check under the CCA and clause C-14 or C-15, if applicable, and the consequences of failure to comply. For example, the holder is potentially liable for hiring an employee with a child abuse conviction who abuses a child within the scope of that employee's employment. The Equal Employment Opportunity Commission provides guidance on the consideration of arrest and conviction records in employment decisions under Title VII of the Civil Rights Act of 1964. This guidance addresses civil rights in the context of compliance with the CCA.

The Forest Service should not be involved in determining whether and when to hire individuals with a criminal record. However, the Forest Service is responsible for enforcing the requirement to conduct a criminal background check per the CCA and clause C-14 or C-15, if applicable.

14. What is the holder's responsibility when a criminal background check identifies that a prospective employee who would be providing child care services to children under the age of 18 has been convicted of a crime? Should a felony conviction for something other than child abuse disqualify the prospective employee?

If a background check reveals a past sex or child abuse offense, will the Forest Service require that the holder not allow this person to be employed as a provider of child care services to children under the age of 18? See the response to question 13.

15. Is a criminal background check required only once for each employee who provides child care services to children under the age of 18? How often must a background check be performed for these employees if they work seasonally for a holder for many years?

See the response to questions 12 and 13. The CCA does not specify how often a background check must be conducted. Holders should check state laws in states in which they operate regarding how often to conduct criminal background checks.

16. Some permit holders hire seasonal foreign employees who work under H2-B and J-1 visas. These holders typically do not conduct criminal background checks on these employees, but instead rely on a recruiting agency or consulate to conduct the criminal background checks. Is this reliance sufficient for compliance with the CCA? Is issuance of an H2-B or J-1 visa considered compliance with the criminal background check requirement?

See the answer to questions 12, 13, and 19. Holders are responsible for determining the sufficiency of criminal background checks in accordance with applicable law and for ensuring that documentation that this requirement has been met is available for inspection. An H2-B or J-1 visa is not documentation of a criminal background check. Some recruiting agencies conduct criminal background checks on prospective foreign employees; that information may be available to employers.

17. Are there ways that permit holders can structure their program to limit the number of criminal background checks they must conduct?

Yes. For example, permit holders can limit the number of employees who provide child care services to children under the age of 18, or they may require parent or guardian participation in educational and recreational programs where these services are provided.

18. What does a Forest Service inspector request from a holder to demonstrate that a criminal background check has been conducted for employees who provide child care services to children under the age of 18?

A Forest Service inspector should ask the holder to identify the positions that involve provision of child care services to children under the age of 18 and the names of employees in those positions. The inspector can also ask to review documentation that establishes criminal background checks have been conducted for those employees. However, the Forest Service should not collect and retain the holder's personnel records.

19. What role does Forest Service law enforcement have in conducting criminal background checks?

The Forest Service's Law Enforcement and Investigations staff should not be involved in any way in conducting criminal background checks or in inspecting or monitoring holders' operations for compliance with this requirement. Criminal background checks are the responsibility of permit holders. Permit administrators are responsible for inspecting and monitoring holders' operations for permit compliance.

The following are resources for holders who are subject to the requirement to conduct criminal background checks on current and prospective employees:

Reporting of Child Abuse and Neglect

1. What was the impetus behind clauses C-14 and C-15 regarding the child abuse and neglect reporting requirement?

The CCA requires every person engaged in a professional capacity or activity on Federal land or in a federally contracted facility to report suspected child abuse and neglect. 42 U.S.C. 13031(a).

"Covered professionals" is defined in the CCA. For special uses, "covered professionals" includes but is not limited to teachers, teacher's aids, assistants, child care workers, and commercial film and photography processors. 42 U.S.C. 13031(b).

2. Has the Forest Service produced a training film for holders to use in raising employees' awareness of child abuse and neglect?

No. However, the U.S. Department of Health and Human Services has developed child abuse and neglect manuals for educators and childcare providers that describe their role in preventing and responding to child abuse and neglect. While these manuals are geared toward educators and childcare providers in more urban environments, they highlight important responsibilities and considerations for any program dealing with children. Local child protective services may be able to provide additional reference material.

For educators, see: https://www.childwelfare.gov/pubs/usermanuals/educator/educator.pdf.

For childcare providers, see: https://www.childwelfare.gov/pubs/usermanuals/childcare/childcare.pdf.

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