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Forum Spring 2019

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Obtaining and Evaluating an Applicant Criminal History


There are many considerations for boards that acquire and process criminal history records. This article is based on a presentation by Fred Olmstead, General Counsel, Nevada State Board of Nursing, at the 2018 FSBPT Annual Meeting.

As a board member or administrator, eventually somebody’s going to knock on your door and ask you to explain how you handle, process, and store your criminal history records. If you don’t have the ability to get fingerprints and you want to, I have information for you. If you’re already capturing prints, I have information for you. I’ve been audited three times and have learned a lot through each audit. The FBI’s Criminal Justice Information Services (CJIS) Security Policy is also a vital resource.

The first rule in order to get fingerprint history and criminal history record information is you have to have statutory authority, otherwise the FBI’s not going to give it to you. If you are thinking about doing the PT compact, you have to have criminal history record information. So, you have to enact the compact in your legislature. But you also have to have statutory authority to get prints; they’re separate. You could combine them into one bill, but you need both.  

If you need language for the bill, you could copy another state board that has authority, or look at other boards and entities in your own state. What bill gave them their authority? That might be an easier sell to state legislatures because they already passed a bill with similar language for another entity.

In my state, Nevada, the FBI goes through the Department of Public Health and the state police to work with us. So we deal with both entities and we are not allowed to work with other boards. If the physical therapy board and the occupational therapy board share an office, they cannot share records. Even though applicants might send prints to other entities, since the board stores them, it’s the board’s responsibility to properly store them, shred them, etc.

Don’t Share Records

You also need to be sure not to share records. For example, for my first audit, the FBI agent said, “What do you do if you get a hit?” We said we write back to the applicant saying that they said they didn’t have a conviction but that they did have a conviction for, say, theft. The FBI told us we can’t share that because we can’t share that information with anyone. We said we needed to let the applicant know somehow about the changed status of their application. The FBI agents told us they’d think about that. In the meantime, we continued doing what we were doing.

For the second audit, I asked if we could share it and they said yes, but that we have to paraphrase it in a letter. We can’t share the document. To paraphrase, we keep it general and just say we received information, not specifically FBI criminal history record information: We have received information regarding an arrest or a conviction in this town on this date for this charge. Please provide court documents, a letter of explanation, etc.

You probably will not want to share the criminal history documents with your boards. If I had a printout from a criminal history record information from the FBI, no board member would ever see it, because in Nevada, what I give to my board member is a public document. Additionally, while the criminal history is a start, it’s not actually that useful in and of itself. When I do take something to the board, it’s court documents, police reports from the state or from the city, that are pertinent to that event.

Office Space

When the FBI comes, they’ll ask for certain folders that they want to see and they will also show up to your office, they look around.

For the second audit, we had a beautiful office, wide open. The FBI walked in and they said, oh no, no, no. They went back to our Department of Public Safety, and we got a letter saying we needed to have a door that closes things off. We had to rearrange our whole office.

They also look around to see where they can see monitors, even from someone climbing a tree outside the windows. That’s the way they think. And so our Department of Public Safety gave us a list of things we had to do, and we did it.

Technology

Our third audit was a technology audit, and that was a bear. They asked what we did with our criminal history record information. If it’s negative, we shred it. It it’s positive, we send a letter paraphrasing it. They were okay with that, but then asked us where we stored the letter. We said our database. And who has access to that? We said, all the employees.

They said, when you take the criminal history record information letter and you paraphrase it into a letter, that letter becomes criminal history record information. And when you store it on your database, your whole database becomes criminal history record information.

So we had to do a technology audit—encryption, firewalls, etc. The good news is they don’t shut you down; they just say, “Fix it.” And then we’d fix a little bit and they’d come back. And we’d fix some more, and then they come back, and finally we got it done.

FBI Records and Local Records

The FBI runs prints against their system, but they also run it against state systems. However, some small towns do things differently or don’t update their records with the FBI often. For example, every six years we re-print. We printed them six years ago, and there was nothing. We printed them again, and there was a hit from before the time we originally printed them. So small towns are uploading things to the FBI at a rate that is still going on.

My prints are also only as good as the day they run the system. If I get convicted tomorrow or arrested tomorrow, then they’ll never know about it until I get printed again. There is a thing called Rap Back: if I print for a board and then if I get arrested three years from now, they’ll send a notification to whoever printed me and is part of Rap Back. However, it’s expensive, so not all boards are able to afford it.

Fingerprinting

The most common way to get prints is have another entity do it. It probably makes more sense to have places that are already set up to take prints do it instead of investing in the machinery and secure technology yourself. List acceptable locations on your website and application, or link to the Department of Public Safety, which may already have this list of locations.

Receipt of criminal history record information takes time. Our licensees want to apply, pass the test, and go to work. So we tell them, get your prints two to four months in advance. It might not take that long, but it might. However, in Nevada we don’t do accept prints any earlier than six months, because the prints are only good the day you print.

There can be delays and fingerprints can even get lost, or they can’t get read, mistakes can be made. Tracking numbers help solve problems. When I go to Fingerprinting Pros and print and pay, they will give me a receipt, and there’ll be a tracking number on that receipt. But consider, do you want that receipt as a board? Do you want it as evidence or so you can help them when there’s a problem tracking their prints?

We also ran into issues printing our employees. The FBI wanted to print them before they handled records, but we only had authority to print for licensure. Eventually, we worked it out and now employees get printed on new hire and every six years, and we log that information and keep it confidential.

Applicants Who Don’t Disclose Criminal history

What if an applicant said they didn’t have a conviction, but the criminal history comes back positive?

We talk to them, paraphrasing what we found, and we ask them what happened. Some applicants honestly don’t realize they were convicted. They did something back in college, they paid an attorney, the attorney told them not to worry about it. People do honestly forgot or mess up. We ask them for court documents and other evidence so we can better understand the situation. They have to supply it. Boards don’t have time to dig up that kind of documentation.

Creating Policies and Procedures

It’s important to keep in mind that criminal history record information is not evidence. You need the evidence upon which to determine whether to grant or deny the application. And you need policies and procedures about how to grant or deny an application, because you want to limit discretion in these cases. You want to be able to say, “I gave that person a license based upon the policy procedure that says, give that person a license.”

When looking at your policies, you need to consider several things:

    • Felonies
      • Are misdemeanors different than felonies? Are there time limits? Some states won't give licenses to felons; some do. Compacts have different rules to consider as well.

    • Juvenile Convictions
      • Technically, we can't use juvenile convictions because that’s not a criminal conviction, it’s none of our business, and that’s the purpose of juvenile courts. But what if it is of such a nature that it gives us pause? Then we’re going to look into what happened, because we have to protect the public. So, if someone has a lot of juvenile drug offenses, technically we can’t use that, but we can talk about it—because giving them access to all the medications as a PT makes us uncomfortable.

    • Military Sanctions
      • Is the military sanction of such a nature that we don’t like it? Then we’re going to get some more information on that. But what if it’s for something like the uniform wasn’t right. We’d let that go.

Some discretion is allowed on these things, but I’m careful with any kind of discretion that I use because I know that if I mess up, it’s going to come back to me. That’s fine, I own that. But if you’re the one making that decision behind how to use criminal histories, you have to get a feel for what is behind those decisions.

Fred Olmstead

General Counsel, Nevada State Board of Nursing

Fred Olmstead has been the General Counsel for the Nevada State Board of Nursing since 2003. As General Counsel for the Board, Fred provides legal advice to the Board’s discipline, administration, and licensure departments. The Nevada State Board of Nursing requires an applicant submit fingerprints to obtain the applicant’s Criminal History Record Information for purposes of determining fitness for licensure as a nurse in Nevada. Fred has survived four FBI audits of the Nursing Board’s use of Criminal History Record Information. Fred was recently appointed to the State of Nevada Advisory Commission on the Administration of Justice’s Subcommittee on Criminal Justice Information Sharing.

 

 

 

 

 

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