Overview

Background
More than 87 million children are involved in activities provided by child and youth service organizations and agencies each year. Millions more adults, both the elderly and individuals with disabilities ¹ who are in need of support, are served by many more organizations and agencies. These encounters run the gamut from relatively brief interactions with healthcare or recreation providers, to surrogate family relationships in foster care, to intensive dependent adult care services in or out of the home. The vast majority of these encounters are not harmful or abusive, but instead result in the provision of much needed services -- sometimes by volunteers, often by persons who are not among society's better paid employees.

Abuses do, however, occur. Although studies are sketchy and do not provide a complete picture, one study indicated that 12.8 percent of the estimated 2 million incidents of elder abuse occurring in the home were perpetrated by service providers.² A survey of 600 nursing home staff members suggested that elder abuse is a fact of institutional life: Of the staff surveyed, 10 percent admitted to physically abusing patients and 40 percent admitted to personally committing at least one psychologically abusive act in the preceding year.³ As for children, estimates of the incidence of child sexual abuse in daycare centers, foster care homes, and schools range from 1 to 7 percent.⁴ Although the incidence of abuse may be relatively small, abuse traumatizes the victims and shakes public trust in care providers and organizations serving these vulnerable populations.

Congress has acted to address concerns about this type of abuse. In 1993, the National Child Protection Act, Pub. L. No. 103-209, was passed (see appendix A). Section 3 of the Act set forth a framework through which States could authorize criminal record checks of childcare providers by the Federal Bureau of Investigation (FBI). In 1994, the Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103-222, amended the 1993 act so that States could also authorize FBI criminal record checks of those working with individuals with disabilities or the elderly. In addition, the Attorney General was directed to "develop guidelines for the adoption of appropriate safeguards by care providers and by States for protecting children, the elderly, or individuals with disabilities from abuse." In developing these guidelines, the Attorney General was further directed to "address the availability, cost, timeliness, and effectiveness of criminal history background checks and recommend measures to ensure that fees for background checks do not discourage volunteers from participating in care programs."

These guidelines supplement and incorporate those issued on July 17, 1995 (see Criminal Justice Information Services (CJIS) Information Letter 95-3, appendix B). They assist those faced with screening decisions by suggesting a decision-making model to use for an analysis of screening issues. The guidelines' main virtue lies in presenting a framework for making decisions about whom to screen and how. Examples are provided to illustrate how the model can be utilized in making screening decisions.

The decisionmaking model begins with factors that trigger the need for screening, such as the level of direct worker-consumer contact,⁵ the characteristics of the consumer served, and the amount of worker supervision present. These triggering factors set the stage for determining the type(s) and extent of screening to perform. The next step is to consider the intervening factors that may limit the ability to perform certain kinds of screening, including cost, access, and time constraints. In providing an opportunity to consider intervening factors, the model recognizes that the most optimal screening approaches may not, in fact, be realistic options for all settings. By considering both triggering and intervening factors, the best possible screening approach can be selected.

The model assumes that all organizations undertake at least basic screening (interview, verified application, reference checks), even in those situations requiring the most cursory review. Thus, although some might suggest that no screening is necessary for situations in which the prospective volunteer or employee is known to the organization or agency, such an informal approach to screening is not advisable. A formal review and reference process, such as that recommended with the basic screening practices, should be undertaken. Further, with respect to basic screening, organizations and professional associations are encouraged to develop model screening procedures and interview questions as part of their hiring or volunteer placement procedures (see appendixes C and D for suggestions for implementing screening and for sample screening forms, respectively).

Two caveats must be given. First, although screening to weed out potentially abusive individuals is important, it should supplement, not substitute for, an evaluation of skill development or competency. Second, all screening practices have limitations. Their use cannot guarantee that individuals who pass through the screening will not abuse children, the elderly, or individuals with disabilities in need of support. Thus, continuing to protect against abuse using posthiring screening and prevention procedures is warranted.⁶

Before examining the specific guidelines, organizations should understand the purpose of screening and the scope of specific practices that can be used to screen individuals. In addition, because some practices include access to information held by the government (e.g., criminal records), an overview of the legal framework is also included. This document reviews the purpose and specific types of screening practices and the legal framework for those practices and sets forth specific screening guidelines and a decisionmaking model. The appendixes include appendix A, The National Child Protection Act of 1993, Pub. L. 103-209 -- Dec. 20, 1993, and Extracts from the Amendment of the National Child Protection Act; appendix B, Criminal Justice Information Services (CJIS) Information Letter 95-3; appendix C, Some Suggestions for Implementing Screening in the Organization; appendix D, Sample Forms; and appendix E, Posthiring Practices.

Purpose: Protection of children, the elderly, and individuals with disabilities
The underlying reason for screening prospective workers who may come into contact with children, the elderly, or individuals with disabilities in need of support is the same -- to identify potentially abusive individuals. When an individual entrusted with the care of someone abuses that person and then is found to have abused others previously, questions arise. How could such a person be in a position of caring for children or other vulnerable individuals? How can this be prevented from happening again?

Efforts by States, coalitions, and individual organizations to answer these questions have led to a number of additional inquiries: How much screening should be done and who should decide? Should all who may or do come into contact with these vulnerable populations be screened? Volunteers versus employees? Individual service providers or group and institutional providers? What kind of screening should be done? Federal and State criminal checks? State central child abuse registry checks? In which States? Who should have access to these information data bases? What kinds of limitations should be placed on access to this information? Should these decisions be made at the Federal, State, or local level? What determinations should be left to individual organizations? Should a worker be "on the job" in a paid or volunteer capacity pending the results of screening? Who should bear the cost of the various screening practices?

These guidelines provide background information and a structure for analysis of these and other screening issues. The materials are intended to give those in a position to decide screening matters a solid base from which to make their decisions.

Screening practices
Typically, when background "screening" is discussed, the focus is on the use of information from criminal history records (e.g., FBI fingerprint checks). It is important to recognize, however, that many other practices can weed out potentially abusive workers and volunteers. These range from standard interviewing and reference checking to more complex and controversial procedures such as screening against child abuse, reviewing dependent adult abuse and sex offender registries, psychological testing, drug testing, and home visits. (Not all of these practices can be undertaken in all States, however. The discussion of the legal framework below provides additional information on these practices.)

Some Types of Background Screening Mechanisms

Basic Screening Practices

Employment reference checks.

Personal reference checks.

Personal interviews.

Confirmation of education.

Written application.

On-the-job observation.

Frequently Used Practices

Local criminal record check.

State criminal record check.

FBI criminal record check.

State central child/dependent adult abuse registry check.

State sex offender registry check.

Nurse's aide registry record check.

Motor vehicle record check.

Professional disciplinary board background check.

Infrequently Used Practices

Alcohol/drug testing.

Psychological testing.

Mental illness/psychiatric history check.

Home visits.

Consideration of the following screening methods is incorporated into the guidelines, particularly in discussion of the decisionmaking model: (1) practices that can be considered basic screening, (2) more extensive background checks that are frequently used (e.g., criminal history checks), and (3) special methods that are used infrequently or for special types of workers only. Information about the practices currently being used is primarily limited to those used by organizations and agencies serving children and youth. A study funded by the Office of Juvenile Justice and Delinquency Prevention (OJJDP), Effective Screening of Child Care and Youth Service Workers,⁷ surveyed approximately 3,800 child- and youth-serving organizations and agencies nationwide on the screening mechanisms they used (the study explored cost, timeliness of information, quality, and perceived effectiveness). The study's findings indicated some differences in the practices used to screen employees and those used to screen volunteers:

The universe of persons having contact with children, the elderly, and individuals with disabilities in need of support
Attempts to determine who should be screened rapidly reveal the multitude of settings in which abuse might be perpetrated. A partial list of settings in which individuals come into contact with children, the elderly, and individuals with disabilities gives a sense of the enormity of the contact points:

Considering that these and other settings can encompass services provided in or out of the home by volunteers or employees, the number of instances in which screening may be considered is extensive. State efforts to coordinate screening are strongly encouraged.

The legal framework ⁸
State social welfare and licensing agencies have increasingly required that certain practices be used to screen at least some types of prospective employees, and in a number of States, statutes require that certain screening practices be used for some types of workers. Some of the screening methods involve the use of information that is held by government entities and that may require legislative or administrative action before it can be accessed. Specifically, checks of criminal records and State central abuse registries (which maintain information on "founded" or "substantiated" reports of abuse or neglect) involve such governmental compilations of information. Similarly, sex offender registries (stemming from statutes requiring convicted sex offenders to register with law enforcement agencies where they reside, e.g., Megan's Law) often require legislative or administrative action to authorize their use for screening.

With a few rare exceptions, the information systems mentioned above were originally established for purposes other than the screening of workers. Criminal recordkeeping was developed to assist law enforcement or criminal justice entities in tracking crime and criminals; central child abuse registries were established to assist State agencies responsible for child welfare in tracking children about whom allegations of child abuse or neglect may have been made; and sex offender registration requirements were designed to aid law enforcement in investigating sex crimes by tracking persons convicted of sexual offenses.⁹

As a result of the different purposes for which these information sources were developed, their use to identify potentially abusive individuals has raised questions, spawning the development of procedures that attempt to provide information in a fair manner. Moreover, developing legislation on the appropriate uses of these information compilations raises sometimes conflicting public policies -- the protection of children, the elderly, and individuals with disabilities from potentially abusive individuals, the rehabilitation of offenders, "due process" issues, and privacy interests. Given these conflicting policy goals, it is no surprise that State laws and regulations vary widely in the type and scope of screening required.

Federal laws
Screening, at least with respect to childcare workers, has been a topic of Federal legislation for some time.¹⁰ Recent Federal action has focused on criminal records and sex offender registration. The National Child Protection Act of 1993,¹¹ which was amended by the Violent Crime Control and Law Enforcement Act of 1994,¹² addressed national criminal record checks. The National Child Protection Act, as amended, enhanced the existing national criminal check process through which States may authorize national criminal checks on persons providing care to children, the elderly, or individuals with disabilities. This act, as amended, did not itself permit or require that any such checks be done, but maintained respect for State policymaking in this area while encouraging States to consider screening legislation. Whether national checks are required or permitted continues to depend on whether there is a State statute, approved by the Attorney General, that specifically authorizes national (fingerprint) checks.¹³ Appendix B (CJIS Information Letter 95-3) answers many questions about the National Child Protection Act.

Sex offender registration was the focus of the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act, passed as part of the Violent Crime Control and Law Enforcement Act of 1994. This act mandated that the Attorney General establish guidelines for State programs requiring registration of sex offenders. Among other requirements, offender registration information is to be forwarded to a designated State law enforcement agency, which in turn is to transmit the conviction data and fingerprints to the FBI. The information collected is to be treated as private data but can be disclosed to government agencies conducting confidential background checks.¹⁴

In addition, criminal checks for home health aides were recently added to the Medicare requirements for home health agencies.¹⁵

State laws
Legislation regarding the screening of persons working with children, the elderly, and individuals with disabilities has not been passed in all States. To the extent they exist, State screening laws may be found in licensing laws, laws governing State social welfare agencies, and laws regarding specific information systems (e.g., criminal record repositories, child or elder abuse registries, or sex offender registries).

Screening laws vary in the types of workers covered and the types of checks required. Licensing laws are obviously limited to the individuals or entities licensed. States have made differing determinations as to whom to license. Statutes that charge the human services department (or similar State agencies) with child welfare and protection responsibilities often only reach those who participate in the child protection system or serve residential and health organizations. Typically, they may include licensed social workers, foster or adoptive parents, and persons who may work with or care for children, the elderly, or individuals with disabilities in other settings such as group homes or residential institutions.

Among the licensing and social welfare laws in effect, there is considerable variety in the type of check to be conducted. For example, some States require checks of the State central abuse and neglect registry or criminal history records. A few licensing statutes may be more detailed and require licensees to contact previous employers.

State laws also vary in specifying the types of workers to be screened. Some laws requiring criminal checks of home health aides and attendants only cover employees. Other laws may include those providing direct care and substitute caregivers. In addition, mandated settings vary. For example, many States require criminal record checks for daycare centers, some cover schools, some include licensed home healthcare facilities, and some cover any setting in which people have supervisory or disciplinary authority over a child. Specific exceptions, however, often exist. With respect to services for children, exceptions have included:

Because licensing may not always be an appropriate mechanism to encourage screening, a number of States have passed separate statutes authorizing certain screening practices. These generally include checks of State criminal records or the central child abuse and neglect registry.¹⁶ Most States do not maintain registries of persons who are being investigated for or who have committed abuse against the elderly or dependent adults.¹⁷

More than half the States have laws authorizing national criminal history checks for some type of person working with children, the elderly, or individuals with disabilities. A number of States also authorize State criminal history checks (either in lieu of or in addition to the national check). At least 12 States have enacted statutes mandating criminal background checks of nurse's aides; several additional States have proposed legislation.¹⁸ The statutes do vary in that several require a more comprehensive background check than others. Some States set forth a more expansive listing of crimes prohibiting employment, while others broaden their scope beyond the hiring of nurse's aides to all staff who have access to children and adults in need of supportive services -- including, in certain circumstances, volunteers.