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Federal Register / Vol. 86, No. 35 / Wednesday, February 24, 2021 / Rules and Regulations
many commenters expressed objections to the requirement for mandatory use of designated vendors based on administrative burden, geographical and technical challenges, asserted inadequacy of the information provided, challenges with the service, added costs to programs and challenges in establishing accounts with vendors. For commenters who acknowledged the benefit of the vendor, some indicated that while use of agency-approved vendors may satisfy the statutory requirements, grant recipients also use the criminal history check results to make determination of suitability in addition to eligibility. Agency-approved vendor criminal history check results which, in the case of the FBI check provides a cleared or not cleared recommendation based on whether or not the individual has been convicted of murder or an offense requiring registration as a sex offender, rather than providing a list of arrests and convictionsdo not help a grant recipient determine suitability based on other criteria e.g., a program that involves driving wanting to know if a person had recent DUI convictions. As a result, grant recipients must conduct duplicate or supplemental criminal history checks at additional expense, which is an allowable cost under grants, in order to meet local requirements.
Commenters also noted that no criminal history check vendor has complete coverage or access to all state criminal history record repositories, creating coverage gaps for locations excluded from vendor access. In these circumstances, the vendor check may not satisfy local clearance requirements.
In other instances, commenters noted that, for them, getting results through a state repository may be more economical and convenient than working through agency-approved vendors. Commenters also articulated that using agency-approved vendors required a level of technological savviness or accessibility that some grantee organizations or some people working or serving under the grants might not have. Commenters also noted that in some areas, vendor fingerprint collection locations may be prohibitively inconvenient for persons who do not have transportation or who need a location that is accessible to those with disabilities. Several commenters suggested that having both agency-approved vendors and state repositories as options for obtaining NSCHC components was satisfactory.
Response: The agency strongly encourages use of the approved vendors, though use of the approved vendors is
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not the sole method through which a grant recipient or subrecipient may obtain NSCHC components. The grant recipient community dramatically improved NSCHC compliance through use of the vendors, as reflected in the agencys IPERA analysis. Use of the vendors allows for timely compliance monitoring, which reduces the risk of adverse enforcement action. However, after careful consideration of the comments and the expression by commenters that they are able to obtain NSCHC checks that more closely meet their specific needs using methods other than the agency-approved vendors, the agency decided not to include the requirement to use the agency-approved vendors in the final rule. The agency will continue to implement effective enforcement to ensure grant recipients demonstrate timely compliance with the requirements of the final rule.
Comment: The agency received comments on the requirement to conduct, review, and adjudicate a persons criminal history check results before the person may start service or work under a grant. Some commenters expressed that it was inconvenient to complete the background checking process before the start of service or employment because, at times, there may be delays or lack of responsiveness on the part of criminal history repositories, vendors, or because of other aspects of their onboarding process. Commenters stated they believe the new requirement would result in delayed startup and was unnecessary, as most programs conduct training and orientation in the first few days of service, which limits access to vulnerable populations. Further, some commenters stated that the agencys timing of grant awards makes compliance unduly burdensome, as they are unable to take steps to enroll members, including the NSCHC, under the grant until it is awarded.
Response: The agency considered the challenges posed by potential delayed return of criminal history results and determined that establishing a clear requirement would eliminate longstanding confusion about when the NSCHC needs to be performed, how accompaniment of individuals with pending checks should be documented, and whether an individual has been determined to be eligible prior to a grant recipient incurring costs. Further, determining by the day before a person begins work or service on the grant that they do not have a disqualifying conviction protects program beneficiaries and the community from potential harm. The desire to resolve any uncertainty related to NSCHCs
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outweighs the impact on programs that desire to start employees or participants before they are cleared. Some of the commenters also suggested that because the statute does not require the check to be completed prior to service, the agency should not specify a time by which NSCHCs should be completed.
The agency declines to adopt the proposed change because the value of the NSCHC is in knowing in advance whether a person has been convicted of murder or a sex offense requiring registration. Some commenters stated that there is not an ineligibility problem in the agencys programsmeaning that the rate at which ineligible individuals are discovered through the NSCHC
process is so low as to make the process unnecessary. Commenters implied that not having a significant number of ineligible individuals in covered positions should be a basis to have a rule flexible enough for individuals in covered positions to fulfill the NSCHC
requirements on the last day of service or even after service ends. However, the agency views the fact that most persons who apply to serve through the agencys programs are eligible as a reason to continue to ensure that minimal screening takes place prior to service, to ensure that ineligible individuals do not serve. The agency encourages grant recipients who have onboarding challenges related to the timing of a grant being awarded to contact the agency. The agency will work with the grantee to ensure that timing of the grant award does not unreasonably prevent a grant recipient from taking timely action to comply with the rule.
Comment: Commenters objected to the requirement to check, within 180
days, any covered individuals not previously cleared through the designated vendors. Many commenters expressed this was burdensome and unnecessary. Some commenters asserted that to require individuals cleared under a prior rule was contrary to law, as the agency had limited authority to change a condition of the grant after it was awarded.
Response: After considering the comments, the agency decided to retain the requirement that within 180 days of the effective date of the rule, any individual who continues in a covered position must have an NSCHC that complies with the final rule, in order to establish clarity and consistency in the NSCHC requirements. That is, each person in a covered position who continues to work or serve on or after November 1, 2021 must have a check that complies with this regulation. They must be able to show that all three required componentsthe NSOPW, the
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