Expanded Background Checks

Memorandum

TO: Public School Superintendents
Charter School Principals
Accredited Nonpublic School Principals

FROM: Pat Mapes, Director
Education Licensing and Development

DATE: June 11, 2009

SUBJECT: Update on implementation of HEA 1462 regarding expanded criminal history checksfor school employment and reporting convicted teachers and employees

The purpose of this memo is to provide an update on sections of House Enrolled Act 1462 that go into effect on July 1, 2009 and that are being facilitated or implemented by the Office of Educator Licensing and Development.

House Enrolled Act 1462 amends several sections of the Indiana Code focused on safeguarding students and school communities by putting in place a requirement for expanded criminal history checks on all applicants for school employment, establishing a formal reporting process on school employees convicted of one or more felonies listed at IC 20-28-5-8(c), and providing for the development and maintenance of a searchable public data base of teachers and school employees who are convicted of any of those listed felonies.

Indiana Code 20-26-5-10 requires all school corporations, charter schools, and accredited nonpublic schools to adopt and administer a policy requiring each applicant for noncertified or certificated employment to obtain an expanded criminal history check as of July 1. The definition of “expanded criminal history check” found at IC 20-26-2-1.5 includes a search of records from all Indiana counties in which the applicant resided, all counties in other states in which the applicant resided, and the  national sex offender registry or the sex offender registries of all fifty (50) states; or a national criminal history background check and a search of the national sex offender registry or the sex offender registries of all fifty (50) states.

To assist school employers in meeting this requirement, the Department of Education is working with the Indiana State Police (ISP) and its live-scan fingerprint vendor, L-1 Identity Solutions, to make this process as user friendly as possible. Included with this memo is an excel spreadsheet provided by the Indiana State Police noting the information needed for your school corporation or school to enroll at no cost through the ISP website to view results electronically. Once completed, the spreadsheet should be emailed to Mr. Ken O’Hare at ko’hare@isp.in.gov. Applicants for employment can register online through L-1 to schedule a fingerprint appointment at one of 63 fingerprinting locations around the state. The fingerprint locations can be viewed at:
http://www.l1enrollment.com/locations/?st=in
and applicants can schedule a fingerprint appointment at one of the locations at https://in.ibtfingerprint.com/. Fingerprints are run through both the ISP Automated Fingerprint Identification System (AFIS) and the FBI’s Integrated Automated Fingerprint Identification system (IAFIS). Results, reported as “Qualified” and “Not Qualified,” can be viewedonline by school employers, sometimes within the same day the applicant’s fingerprints are scanned.

You can learn more about IAFIS at http://www.fbi.gov/hq/cjisd/iafis.htm. Should you need additional information, the following personnel are available to assist with any questions:

1) Ms. Inez Ford 317-234-2717 iford@isp.in.gov
2) Mr. Ken O’Hare 317-233-5037 ko’hare@isp.in.gov
3) Lieutenant Darnell Ledsinger 317-233-5132 dledsinger@isp.in.gov

The combined cost of the L-1 enrollment and fingerprint service and the ISP/FBI check, which is borne by the applicant, is approximately $43; by statute an applicant may not be required by a school corporation, charter school, or accredited nonpublic school to obtain an expanded criminal history check more than one (1) time during a five-year period. Please note the requirement that teacher license applicants submit a Limited Criminal History as a condition of licensing is repealed as of July 1. We strongly recommend that during the five-year validity period of the expanded criminal history check each school employer annually check their employee roster against the public sex offender and violent offender registries.

There are other vendors available that offer expanded criminal history check services. There is no requirement that you utilize L-1 and the ISP service. If you are using another vendor be sure the vendor’s expanded criminal history service includes all the necessary components noted at IC 20-26-2-1.5.

Two other sections of HEA 1462 on which we are working concern the reporting of teachers and other school employees who are convicted of one or more of the 19 felonies listed at IC 20-28-5-8 or for whom the governing body has taken final employment action relative to one of the listed felonies. The Office of Educator Licensing and Development is collaborating with our Office of

Education Information Systems to create a secure reporting form that can be submitted electronicallyby school employers and can be printed and mailed by local prosecutors. Once conviction information is received and verified for former noncertified school employees it will be included in apublic data base that can be accessed on our website. Conviction information reported on certificated employees will be verified, reported on the public data base, and forwarded to the Office of Legal Services for investigation and initiation of license revocation proceedings. Both the reporting mechanism and the data base are currently in development and will be functional July 1. Information will be forthcoming closer to the effective date.

Should you have questions or need additional information please feel free to contact RisaRegnier, Office of Educator Licensing, at 317/232-0501 or by email at rregnier@doe.in.gov.

Expanded Background Checks FAQ

HEA 1462 Expanded Criminal History Checks

1. Does the requirement for an expanded criminal history (ECH) apply to all job applicants or just thosewho are recommended for hiring?
Only those applicants who are “finalists” for a position need an expanded criminal history check.

2. Does the ECH requirement apply to just new hires or to current employees?
Governing bodies must have in place a policy that requires expanded criminal history checks for new hires after July 1, 2009,although the governing body may adopt a policy that addresses expanded criminal history checks forcurrent employees as well.

3. Information was sent out about L-1 Identity Solutions, including applicant cost and registration forfingerprinting and how school employers can register to obtain ECH results online. Are schoolemployers required to use L-1 Identity Solutions?
No. There are several vendors that provide ECHservices. Because the Indiana State Police (ISP) has an existing contractual relationship with L-1identity Solutions, school employers may utilize L-1 as well.

4. Does the ECH have to include fingerprinting?
No. There are several vendors that provide expandedcriminal history checks that are not based on fingerprints. If a school employer wants to use L-1Identity Solutions, that service is based on searches of the Indiana State Police Automated FingerprintIdentification System (AFIS) and the FBI’s Integrated Automated Fingerprint Identification System(IAFIS). For information about IAFIS go to http://www.fbi.gov/hq/cjisd/iafis.htm

5. Does the ECH check using L-1 Identity Solutions fingerprinting service and the Indiana State PoliceAFIS and IAFIS searches fulfill the requirements of the HEA 1462?
The L-1 /ISP searches will likely pickup sex offender convictions in other states, but it does not specifically search the national sex offenderregistry or the sex offender registries of all 50 states. If you use the L-1 Solution you should also checkthe Indiana Sex/Violent Offender Registries at http://www.insor.org/insasoweb/ and the National SexOffender Registry at http://www.fbi.gov/hq/cid/cac/registry.htm in order to fully comply with HEA1462. Access to these websites is free.

6. Can the governing body adopt a policy requiring ECH for current employees?
A governing body has the authority to adopt a policy that addresses expanded criminal history checks for current employees as well as new hires.

7. Does the expanded criminal history check apply to all employees or just teachers?
The requirement applies to all new hires after July 1, 2009 “who are likely to have direct, ongoing contact with children within the scope of their employment,” regardless of whether the individuals are certified or noncertified.

8. What should I do if an ECH check discloses an arrest and/or conviction?
You should follow your local policy concerning what kinds of incidents and/or convictions disqualify an applicant from employment.   In addition, you are encouraged to contact the Department of Education’s Office of Legal Affairs if you believe that an incident reported on an expanded criminal history check is grounds for revocation or suspension of a license, or is evidence of immorality, misconduct in office, incompetency, or willful neglect of duty so we may undertake further investigation.

9. Who is responsible for the cost of the ECH check?
The law states “the applicant is responsible for all costs associated with obtaining the expanded criminal history check. An applicant may not be required by a school corporation, charter school, or accredited nonpublic school to obtain an expanded criminalhistory check more than one (1) time during a five (5) year period.” IC 20-26-5-10(b).

10. What are the elements of “Expanded Criminal History Check?”
The definition of “expanded criminal history check” is found at IC 20-26-2-1.5, which is included below:
Sec. 1.5. “Expanded criminal history check” means a criminal history background check of an individual that includes:
(1) a:
(A) search of the records maintained by all counties in Indiana in which the individual who is the subject of the background check resided;
(B) search of the records maintained by all counties or similar governmental units in another state, if the individual who is the subject of the background check resided in another state; and
(C) check of:
(i) sex offender registries in all fifty (50) states; or
(ii) the national sex offender registry maintained by the United States Department of Justice;
OR
(2) a:
(A) national criminal history background check (as defined in IC 10-13-3-12); and
(B) check of:
(i) sex offender registries in all fifty (50) states; or
(ii) the national sex offender registry maintained by the United States Department of Justice.

The check described in (1) (a) above is a service provided by a private company. The check described in (2)(a)(A) above is obtained through the Indiana State Police by using L-1 Identity Solutions or submitting a paper fingerprint card obtained at a local police department. (2)(a)(B) can be done by school administrators online at http://www.fbi.gov/hq/cid/cac/registry.htm.

11. An applicant may not be required to obtain an ECH check more than one (1) time during a five (5) year period, but can the school employer obtain a limited criminal history and/or an ECH check during the intervening 4 years?
Yes. There is no prohibition against the school employer obtaining, or requiring an applicant to obtain, a limited criminal history at any time. Further, a school employer may obtain an ECH check on an applicant through a vendor at any time as long as the ECH check can be completed without effort or cost by the applicant, unless five (5) years have passed since the applicant’s previous ECH. If five (5) years have passed since the applicant’s previous ECH, then the applicant can be required to obtain and pay for an updated ECH.

12. Does the ECH take the place of checking references prior to employment?
No. The ECH check should only be one element of your pre-employment check. You should still check an applicant’s references and speak with former employers in the course of exercising due diligence.

13. Does the ECH requirement apply to substitute teachers, teachers on temporary contracts, food service workers, office staff, janitorial and maintenance staff, etc?
The requirement applies to all new hires after July 1, 2009 “who are likely to have direct, ongoing contact with children within the scope of their employment,” regardless of whether the individuals are certified or noncertified.

14. Will a teacher still be required to submit an LCH to obtain an initial license or to renew or professionalize a license?
Not after July 1, 2009.

15. In addition to new hires made by the school employer, does this new ECH requirement apply to other entities?
Indiana Code 20-26-5-10(a), as amended by HEA 1462, requires that a school corporation, including a charter school and an accredited nonpublic school, shall adopt a policy concerning criminal history information for individuals who:
1) apply for employment with the school corporation; or apply for employment with an entity with which the school corporation contracts for services; or
2) seek to enter into a contract to provide services to the school corporation or are employed by an entity that seeks to enter into a contract to provide services to the school corporation, if the individuals are likely to have direct, ongoing contact with children within the scope of their employment.
IC 20-26-5-10(b) goes on to specify the timing of the background checks relative to employment and some particulars concerning the administration of the local policy. Further, it states “the applicant is responsible for all costs associated with obtaining the expanded criminal history check. An applicant may not be required by a school corporation, charter school, or accredited nonpublic schools to obtain an expanded criminal history check more than one (1) time during a five (5) year period.”

To read the entire HEA 1462 you may go the Indiana General Assembly home page and click on the link for Laws and Administrative Rules and enter HEA 1462. The bill adds and amends several areas of the Indiana Code that impact local school policy and operation that will be of interest to you.

16. How does this requirement apply to volunteers and coaches?
You should continue to follow your local governing body policy relative to background checks for volunteers, volunteer coaches and other unpaid community “helpers” in your schools or at school sponsored activities. If the governing body wishes to apply the expanded criminal history check requirement to those individuals as well, the governing body has the authority to change its local policy accordingly.

17. How does this new requirement for ECH checks for new hires after July 1 impact teacher candidates from colleges and universities who are placed in schools for student teaching, observations, and other clinical experiences?
There is no state requirement related to criminal history checks prior to clinical experience placements for teacher candidates. Those requirements are determined by partnership agreements between P-12 schools and institutions of higher education. This is a good time, however, for institutions of higher education and their P-12 school partners to revisit and mutually agree upon requirements/expectations in their partnership agreements for field experiences.

18. HEA 1462 provides that an ECH must be obtained either before or not later than three (3) months after the applicant’s employment. What if an applicant has already been hired and the ECH check is returned with a “dirty” or “not qualified” result?
The Department of Education strongly encourages you to have an ECH in hand prior to recommending an applicant for employment. However, an applicant can also be hired pending successful fulfillment of all pre-employment conditions, which would include a “clean” or “qualified” ECH result. If, after hiring, the ECH check disqualifies the applicant/new employee then the employment relationship can be terminated without further process as long as such is consistent with local policies.