HHS finalizes rules on child care worker screening

In February we posted about regulations proposed by the federal Department of Health and Human Services (HHS) to implement criminal history screening requirements for child care workers under recent changes to the Child Care and Development Block Grant Act of 2014.  The CCRC joined a coalition of organizations led by the National Employment Law Project (NELP) in calling upon HHS to reconsider the proposed regulations. In a formal comment submitted to HHS, the coalition argued that the regulations contained screening standards that were more exclusionary than the Act requires, and that they would have a disparate impact on women, African Americans, and Latinos.

HHS has now issued the final version of those regulations.  Although the final rules are far from perfect, they do address a number of the concerns raised by the coalition.  For example, they omit language that encouraged states to require self-disclosure of criminal history, provide greater protection from inaccurate criminal record reporting, and urge states adhere to the standards laid out in the EEOC guidance by providing individualized assessments for disqualifying offenses that are added by the states but not required by the federal law.

Unfortunately, HHS chose not to back down on one of the most troubling provisions of the proposed regulations: criminal history screening of anyone age 18 or older residing in a license-exempt home that provides child care services.  Screening of those individuals is not required by the Act itself.  As the coalition’s comments explained, the requirement will almost certainly have a disproportionately adverse impact on providers of color and their families:

Expanding background checks to adult household members would have a disparate impact on low-income communities and communities of color, which have higher than average arrest and conviction rates. Based on the experience of our organizations serving these communities, it is clear that they constitute a significant proportion of license-exempt child care providers and are more likely to have multiple generations living in the same house.

NELP has provided a brief summary of how the final regulations address (or fail to address) the coalition’s recommendations:

Recommendation:  Consistent with the narrow language of the CCDBG Act of 2014, ACF should not extend background checks to individuals age 18 or older who reside in a non-relative, license-exempt CCDF provider’s home.

Outcome:  Our argument not to extend child care worker background checks to family members and others residing in the caregiver’s home was not successful (see pages  218-219).  However, the preamble includes strong language cautioning states to narrowly limit disqualifying offenses for this group (“casting too wide a net could have adverse effects on the supply of family child care providers and other consequences for individuals returning from incarceration”) and urging states to include a waiver procedure modeled on the EEOC guidelines.

Recommendation:   In order to limit consideration of inaccurate conviction history information that disproportionately penalizes people of color, ACF should eliminate the preamble language urging states to require applicants to “self-disclose” their conviction records.

Outcome: The final HHS regulations did not include the self-disclosure requirement (at pages 239-230), which is a significant victory.

Recommendation:  Consistent with the preamble language to the draft regulations, we urge ACF to adopt regulatory language incorporating the EEOC guidelines into the provision allowing the states to impose additional disqualifying offenses.

Outcome:   The preamble to the final regulations quoted extensively form our comments describing the need for an individualized assessment based on the EEOC guidelines when states add disqualifying offenses that are not mandated by the HHS regulations  (see pages 252-253). HHS did not adopt our recommendation that the regulation  (Section 98.43(h)) specifically reference the EEOC guidelines, but it did include helpful language in the preamble urging the states to follow the individualized assessment process detailed by the EEOC (“we strongly encourage Lead Agencies to follow recommendations to implement an individualized assessment and waiver process in particular for any other disqualifying crimes not listed in the Act. In addition to challenging the record for accuracy and completeness, an individualized review allows the Lead Agency to consider other relevant information, and to provide waivers where appropriate.”)

Recommendation:  Given the discriminatory impact of drug offenses on women of color, ACF should specifically reference the EEOC guidelines in the regulations authorizing the state to waive disqualifying drug offenses.

Outcome:  The preamble to the regulations also quoted extensively form our comments describing the discriminatory impact of drug offenses on women of color (see pages 250-251).  HHS concluded that the states “must conduct the review processes in accordance with the EEOC’s current guidance on the use of criminal background checks in employment decisions, which requires individualized consideration of the nature of the conviction, age at the time of the conviction, length of time since the conviction, and relationship of the conviction to the ability to care for children, and other extenuating circumstances.”  However, the final regulations (Section 98.43(e)(4)) retained the language of the draft regulations, stating that “the review process shall be consistent with title VII of the Civil Rights Act of 1964.”  Thus, the regulations do not also reference the EEOC guidance, as we recommended.

Recommendation:  Given the reliance on FBI background checks, which routinely contain  faulty information, ACF should adopt more protections governing appeals by workers challenging inaccurate background checks.

Outcome: HHS made significant improvements to the regulations in this area based on our comments (which were quoted in full in the preamble, including our list of five specific “features of a fair and effective appeal process”). (Pages 246-249).

In the preamble to the regulation (Section 98.43(e), HHS stated:  “ACF strongly agrees with the worker protections described in this comment.  While background checks are a necessary safeguard to protect children in child care, we are also mindful of the disproportionate impact that that they can have on low-income individuals of color.  A robust and effective appeals process, that incorporates the elements described above, is critical to protect prospective child care staff members who have inaccurate or incomplete background check records.  As such, we made changes to the regulatory language at 98.43(e)(2)(ii) and 98.43(e)(3) to incorporate many of these protections, while still preserving some State flexibility.”

Most importantly, the new regulation requires the state to “attempt to verify the accuracy of the information challenged by the child care staff member, including making an effort to locate any missing disposition information related to the disqualifying crime.”  This is a major victory, and it sets a precedent in federal law requiring states to track down missing dispositions in the state and FBI rap sheets, thus removing the burden from the worker to have to produce the missing or updated records.  In addition, the final regulations require that the notice the worker receives in response to a challenge to the accuracy of the record “should indicate the State’s efforts to verify the accuracy of the information challenged by the child care staff member, as well as any additional appeal rights available to the child care staff member.”

The final regulations and HHS’s response to comments can be found here.

See our initial post on the proposed regulations here.