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Federal Register / Vol. 86, No. 35 / Wednesday, February 24, 2021 / Rules and Regulations
challenge. Successful implementation of the NSCHC process by grant recipients has been frustrated, in part, by variable access to state sources of criminal history record information, requirements of state law, and restrictions on sharing information. As such, Congressional hearings and the agencys Office of the Inspector General OIG reports have highlighted grantee noncompliance with this important statutory requirement.
Improving the agencys core functionsincluding eliminating barriers to complianceis a primary goal of the agencys Transformation and Sustainability Plan. In pursuit of that goal, the agency approved vendors that grant recipients may use to obtain the required NSCHC components. Since November 2018, grant recipients and subrecipients have been able to establish accounts and obtain the required National Sex Offender Public website NSOPW.gov, state, and FBI
components of the NSCHC through the approved vendors. Additionally, to help ensure grantee compliance with NSCHC
requirements, the agency made grant funds available so that grant recipients could recheck persons who needed to have an NSCHC conducted. And for those grant recipients who took the opportunity to ensure compliance by rechecking persons in covered positions, the agency announced that it would not, except in limited circumstances, take enforcement action for past noncompliance. As of July 2020, grant recipients have conducted over 233,000 check components through the agency-approved vendors.
Grant recipients must ensure that they identify individuals who need an NSCHC and ensure that it is done on time. The NSCHC must be conducted as a matter of law, and as a condition of receiving grant funds for individuals in covered positions working or serving under: operational grants provided by AmeriCorps State and National, Foster Grandparent Program Grants, Retired and Senior Volunteer Program Grants, Senior Companion Program Grants, AmeriCorps Seniors Demonstration Program Grants that receive funding from CNCS, Martin Luther King, Jr. Day of Service Grants, September 11th Day of Service Grants, Social Innovation Fund Grants, Volunteer Generation Fund Grants, AmeriCorps VISTA
Program Grants, or AmeriCorps VISTA
Support Grants. Section 189D of the NCSA and these regulations do not apply to AmeriCorps NCCC and or AmeriCorps VISTA members, who serve in Federally-operated programs that have separate criminal history check requirements. For the purpose of the
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NSCHC, individuals in covered positions are: The staff working under these grants, AmeriCorps State and National members, AmeriCorps Seniors volunteers in the Foster Grandparent and Senior Companion programs who receive a stipend.
II. Discussion of the Final Rule The agency published a notice of proposed Federal rulemaking in the Federal Register on January 8, 2020, 85
FR 859. The final rule reflects the agencys consideration of the comments received and clarifies several requirements. In addition, the rule reflects technical corrections to the proposed language.
Agency-approved vendors provide grant recipients a path to obtaining the required NSCHC components. As stated in the Notice of Proposed Rulemaking, preliminary analysis of the agencys FY
2019 Improper Payments Elimination and Recovery Act IPERA test transactions demonstrated that use of the CNCS-approved NSCHC vendors by grantees resolved the NSCHC
component of the improper payment transactions in 88% of the transactions for which the NSCHC component rendered the payment improper. The intent of the final rule is to emphasize the impact and availability of agencyapproved vendors and to clarify and simplify the NSCHC requirements.
The final rule does not require grant recipients to establish accounts and conduct checks through the agencyapproved vendors. However, the vendors remain a proven pathway for timely NSCHC compliance. Many commenters stated that they had access to affordable NSCHC component checks, other than those provided by the agency-approved vendors. The agency strongly encourages the use of the agency-approved vendors because use of the vendors allows grant recipients to reliably demonstrate compliance and eligibility. In addition, the final rule clarifies that individuals who turn 18
while working or serving in a covered position must get an NSCHC if they serve a consecutive term.
The final rule retains many of the other proposed changes. As proposed, the final rule establishes a single set of NSCHC check components, regardless of whether an individual has recurring access to vulnerable populations. The final rule also establishes that the NSCHC must be completed before an individual works or serves in a covered position. Further, it establishes a requirement that, by November 1, 2021, staff, members, or volunteers who remain on or after November 1, 2021 in a position for which an NSCHC is
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required under the final rule complete an NSCHC that complies with the final rule.
III. Comments and Responses The agency published the proposed rule on January 8, 2020 84 FR 859, in the Federal Register with a 60-day comment period and received over 280
comments. More than 75 percent of the commenters indicated they were current AmeriCorps State and National or AmeriCorps Seniors grant recipients subject to the rule.
Generally, the commenters opposed the proposed mandatory use of the agency-approved vendors to obtain the NSCHC component checksthe nationwide NSOPW check of all jurisdictions, including Tribes, states, and territories; state criminal history repository checks; and fingerprint-based FBI checks. While timely use of the vendor would ensure grant recipients statutory compliance and, accordingly, reduce the agencys improper payment rate, commenters articulated how mandatory use of the vendors complicated their processes, and, in response to those comments, the agency has decided not to make agencyapproved vendors the sole option for grant recipients and subrecipients to obtain NSCHC components.
Some commenters suggested that the agency decouple NSCHC from its Improper Payments Elimination and Recovery Act IPERA testing. The agency has never linked or targeted NSCHC compliance as a specific line of inquiry in its Improper Payments Elimination and Recovery Act IPERA
testing. The guidance for executing IPERA is established by the Office of Management and Budget. Under that guidance and the IPERA statutes, payments to covered individuals who have incomplete or missing NSCHC
checks when they received a payment that is included within an IPERA
sample qualify as improper payments, as eligibility cannot be established at the time of payment even if the individuals involved are later cleared in compliant checks. The frequency of NSCHC-based IPERA findings arises from the fact that a large portion of the agencys grant funds are used to make compensation and other payments to covered individuals. Nothing that the agency could write in its NSCHC regulations would alter the frequency that use of grant funds trigger NSCHC
requirements, or that incomplete, incorrect or undocumented NSCHC
checks will be considered improper payments under IPERA.
Commenters generally reflected an appreciation for the value of a criminal
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