May 2018
Guidance:
Background Checks
for
Foster Care Placements under the
Native American Children’s Safety Act
(NACSA)
U.S. Department of the Interior
Bureau of Indian Affairs
Prepared in collaboration with:
U.S. Department of Health and Human Services, Administration for
Children and Families, Children’s Bureau
U.S. Department of Justice
Federal Bureau of Investigation Criminal Justice Information
Services Division
Office of Sex Offender Sentencing, Monitoring, Apprehending,
Registering, and Tracking (SMART)
Office of Tribal Justice.
Guidance: Background Checks for Foster Care Placements under the NACSA
U.S. Department of the Interior – Bureau of Indian Affairs
Contents
I. Overview of the NACSA ............................................................................................................ 5
II. Background Checks for Foster Care Placements (Including Homes, Institutions, and Relative
Care Placements) ............................................................................................................................ 7
A. Applicability ......................................................................................................................... 7
1. When Background Checks are Required ........................................................................... 7
2. Who Must be Checked ....................................................................................................... 8
3. What Databases Must be Checked ..................................................................................... 9
4. What to Look for in the Checks ......................................................................................... 9
B. Tribal Standards for Foster Care Placement ....................................................................... 10
C. How to Conduct a Background Check ............................................................................... 12
1. National Crime Information Database (Fingerprint Check) ............................................ 13
2. National Sex Offender Public Website (NSOPW) .......................................................... 15
3. State Child Abuse and Neglect Registries ....................................................................... 16
4. Tribal Abuse Registries.................................................................................................... 17
D. How to Adjudicate the Results of the Background Check ................................................. 18
E. Ensuring Compliance with the NACSA Under Title IV-E ................................................. 20
III. Promising Practices Employed by Tribes for Emergency Placements ................................... 24
A. Emergency Shelters ............................................................................................................ 24
B. Purpose Code X (Name-Based Criminal Records Search Followed by the Delayed
Submission of Fingerprints for Emergency Placements) ......................................................... 25
IV. Self-Reporting by Foster Care Homes and Institutions .......................................................... 27
V. Certifying Compliance with the NACSA ............................................................................... 29
Appendix A .............................................................................................................................. 31
Appendix B ............................................................................................................................... 34
Appendix C ............................................................................................................................... 35
Guidance: Background Checks for Foster Care Placements under the NACSA
U.S. Department of the Interior – Bureau of Indian Affairs
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Guidance: Background Checks for
Foster Care Placements under the
Native American Children’s Safety Act (NACSA)
Protecting the safety of children is important for obvious reasons. For Tribes, the safety of their
children takes on special significance: there is no resource more vital to the continued existence
and integrity of Indian Tribes than their children. Because of Tribes’ unique relationship with
the United States, as trustee, the United States likewise has a direct interest in the protection of
children who are members of, or eligible for membership in, Tribes. Congress acknowledged
this relationship in enacting the Native American Children’s Safety Act
1
(NACSA).
This guidance is issued in accordance with the NACSA and is the result of a collaboration
among several Federal agencies, identified on the title page of this guidance. The Bureau of
Indian Affairs (BIA) is grateful to both the coordinating Federal agencies, regional social
workers, and Tribes for their input in this guidance. This guidance addresses Tribes’ requests for
clarifications on matters ranging from applicability of NACSA to adjudication of the results of
background checks. BIA plans to partner with Tribes to assist in implementing this guidance,
providing training and technical assistance.
Throughout Tribal consultation on the draft guidance, Tribal representatives stated that the
NACSA imposes requirements on Tribes without attendant funding and Tribal representatives
repeatedly raised the need for additional funding and resources to implement the NACSA fully.
A few noted the potential for more cross-cultural placements as an unintended consequence of
NACSA’s unfunded requirements. The BIA recognizes the importance of funding and resources
in implementation.
Tribes also expressed concerns over their inability to access records of some States, and even
some other Tribes, to complete their background checks of individuals. All governments are
responsible for striking a balance between maintaining the confidentiality of individuals’ records
and allowing access to those records in furtherance of public safety. Different governments may
choose to strike the balance at different points; however, Interior strongly encourages States and
Tribes to review their policies and determine whether revisions are appropriate in the interest of
protecting children’s safety. To paraphrase one Tribal representative’s statement at a
consultation session in Albuquerque, New Mexico:
1
Native American Children’s Safety Act, Pub. L. 114-165, 130 Stat. 415 (June 3, 2016)).
Guidance: Background Checks for Foster Care Placements under the NACSA
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…whether we’re on the Tribal side or State side, the bottom line is the safety and well-
being of our children... It’s not about being secretive or keeping our information to
ourselves. It’s about what’s important… the well-being and safety of our children.
BIA and the coordinating Federal agencies aim to make this guidance as useful and user-friendly
as possible, but if questions arise, we encourage Tribes to reach out to BIA’s Office of Indian
Services, Division of Human Services at (202) 513-7642 if Tribes encounter issues or have
questions.
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I. Overview of the NACSA
The NACSA updates the Indian Child Protection and Family Violence Prevention Act
2
(Act),
which requires criminal records checks (“background investigations,” “background checks” or
“character investigations”) of Federal and Tribal employees, or individuals being considered for
employment, who have regular contact with or control over Indian children, when receiving
funds under the Indian Self-Determination and Education Assistance Act
3
or the Tribally
Controlled Schools Act of 1988
4
. The NACSA adds to §3207 Character Investigations of the
Act a new paragraph (d) entitled “By tribal social services agency for foster care placements in
tribal court proceedings.”
The NACSA extends the requirement for background checks to Tribal foster care placements
of Indian children. Previously, background checks were authorized by many States for non-
Tribal foster care placements and Tribal foster care placements under title IV-E. NACSA
requires character investigations by Tribal social services agencies for foster care placements.
Tribal social services agencies are required to conduct a background check on every adult (age
18 or over) living in a foster care home or working in a foster care institution to determine
whether the individuals meet Federal standards and standards as the Tribe establishes in
accordance with NACSA.
The NACSA requires Tribes to establish standards for foster care placement that include
background checks consisting of: A criminal records check, including fingerprint-based checks
of national crime information databases; a check of any abuse registries maintained by the Tribe;
and a check of any child abuse and neglect registry maintained by the State in which the covered
individual resides or previously resided in the preceding five years. NACSA requirements
emphasize the importance of Tribes creating and implementing foster home licensing standards,
or updating Tribal codes and licensing standards, to ensure safety for children when parents are
unable to provide for their welfare.
The NACSA further requires Tribes to establish procedures to periodically recertify homes or
institutions in which foster care placements are made. Recertification should be aimed at
ensuring: (i) the safety of the home or institution for the Indian child; and (ii) that each covered
individual who resides in the home or is employed at the institution is subject to a criminal
records check, including any covered individual who resides in the home or is employed at the
institution.
2
25 U.S.C. 3201 et seq.
3
25 U.S.C. 5301 et seq.
4
25 U.S.C. 2501 et seq.
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In summary, the NACSA requires Tribes to:
Conduct background checks for all foster care placements by Tribal social services
agencies;
Establish standards for foster care placements that include procedures for conducting
background checks; and
Establish procedures for periodically recertifying foster care homes and institutions.
This guidance is intended to help Tribes by:
Recommending procedures for background checks of individuals residing in foster care
homes or employed at foster care institutions, which Tribes may choose to incorporate
into their Tribal placement standards;
Recommending self-reporting requirements for foster care homes and institutions; and
Recommending procedures for certifying compliance with the NACSA.
While the NACSA does not authorize background checks for emergency foster care placements,
this guidance also provides some promising emergency foster care placement procedures used by
Tribes to help to make sure children are placed in safe homes in an emergency.
The definitions in the NACSA (available at Appendix A) apply to this guidance.
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II. Background Checks for Foster Care Placements (Including Homes,
Institutions, and Relative Care Placements)
The NACSA requires Tribes to conduct a background check on all foster care placements, with
the exception of emergency placements which are not authorized under the NACSA (see Section
III.A of this guidance for promising practices for emergency placements). Specifically, Tribal
social services must complete a criminal records check of everyone (age 18 or older) in the foster
care home or institution and determine whether each individual meets the Tribe’s standards of
placement (which the NACSA requires the Tribe to establish) before approving any foster care
placement or issuing a foster care license.
A. Applicability
1. When Background Checks are Required
NACSA requires Tribal social services agencies to conduct background checks before placing a
child into foster care.
A Tribal social services agency is the agency of an Indian Tribe that has the primary
responsibility for carrying out foster care licensing or approval for the Tribe.
5
This term
encompasses whatever portion of the Tribal government the Tribe has deemed as responsible for
these duties, regardless of the Tribal agency’s title. Different Tribes may have different offices
or officials in charge of these duties, such as the Tribal prosecutor’s office, the Tribe’s
department of public safety, or Tribal police.
5
Where BIA has the responsibility of out-of-home placements of Indian children in providing direct services to a
Tribe, BIA will strive to comply with NACSA and this guidance. BIA does not license foster care home
placements.
Except [emergency placements], no foster care placement shall be finally
approved and no foster care license shall be issued until the tribal social
services agency—
(i) completes a criminal records check of each covered individual who
resides in the household or is employed at the institution in which the
foster care placement will be made; and
(ii) concludes that each covered individual described in clause (i) meets
such standards as the Indian tribe shall establish in accordance with
subparagraph (B).
NACSA § 2, codified at 25 U.S.C. § 3207(d)(2)(A).
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Also, while the Tribe must have jurisdiction to place the child into foster care, there is no
requirement that the placement be ordered by a Tribal court for NACSA to apply.
6
A placement
of an Indian child by the Tribal social services agency (as that term is broadly interpreted) into
foster care is all that is necessary for NACSA’s requirements to apply.
A child under NACSA is an “Indian child,” meaning any child who:
• Is a member of a federally recognized Tribe; or
• Is eligible for membership in a federally recognized Tribe and whose parent is a member
of a federally recognized Tribe.
7
A foster care placement is any action removing an Indian child from a parent or Indian
custodian for temporary placement, when the parent or Indian custodian cannot have the child
returned on demand and the parental rights have not been terminated (or rights have been
terminated but the child has not been permanently placed). This includes placement in a foster
home or institution or in the home of a guardian or conservator. NACSA does not exclude a
placement from the definition of “foster care placement” just because it is in the home of the
child’s relatives or parent’s relatives. Foster care placements may be in the form of a residential
group home, a family home setting, or an institutional setting.
The key in determining whether a placement is a “foster care placement” is that the parent or
Indian custodian cannot have the child returned on demand. Instances where a parent or Indian
custodian temporarily places the child with a babysitter or in child care and can have the child
returned upon demand are not covered by NACSA. Likewise, if the parent’s rights have been
terminated, then the placement is not a foster care placement.
2. Who Must be Checked
NACSA requires the Tribal social services agency to conduct the background checks on every
covered individual living in a foster care home or working in a foster care institution.
A covered individual is an adult (age 18 or over) and any other individual the Tribal social
services agency determines is subject to a criminal records check.
Tribal social service agencies must check anyone who is age 18 or older and living in the foster
care home or working in the foster care institution. Anyone who is 18 or older literally means
anyone who is 18 or older and living in the foster care home or working in the foster care
6
The heading for 25 U.S.C. 3207(d) specifies “foster care placements in tribal court proceedings,” but the text of the
section does not limit applicability to those cases in which a Tribal court is involved.
7
25 U.S.C. 3202(7), incorporating definition at 25 U.S.C. 1903(4).
Guidance: Background Checks for Foster Care Placements under the NACSA
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institution; there is no exception for relatives of the Indian child (other than the child’s parents),
godparents, or anyone else.
State requirements for background checks of additional individuals (e.g., individuals who are age
16 and 17) do not apply to placements covered by NACSA, but the Tribe may, in its standards of
placement, require Tribal social services agencies to conduct background checks of this broader
universe of individuals.
3. What Databases Must be Checked
NACSA’s scope addresses databases within the United States. See Section C. Given that
several Tribes are either on the border of the United States and a foreign country or span the
border, it may be appropriate in those cases for the Tribe to inquire with the foreign country as to
how to conduct a check of the foreign country’s records on the individual. This guidance does
not address the process for doing so, because it is outside the scope of NACSA, however.
4. What to Look for in the Checks
NACSA requires the Tribal social services agency to review the results of the background checks
to determine whether the covered individuals meet Federal standards and standards as the Tribe
establishes in accordance with NACSA. (See Section D).
Guidance: Background Checks for Foster Care Placements under the NACSA
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B. Tribal Standards for Foster Care Placement
NACSA requires Tribes to establish standards for foster care placement. The Tribe’s standards
for foster care placement must include requirements that the Tribal social services:
• Perform criminal records checks, including fingerprint-based checks of national crime
information databases; and
• Check any abuse registries maintained by the Tribe; and
• Check any child abuse and neglect registry
8
maintained by the State in which a “covered
individual” resides and any other State in which a “covered individual” resided in the
preceding 5 years.
The Tribe’s standards for foster care placement may include requirements that are more stringent
than Federal standards. Also, the Tribe has flexibility in whether it chooses to establish
8
Most States maintain a central registry, which is a centralized database of child abuse and neglect investigation
records. Central registries and the systematic record keeping of child abuse and neglect reports serve to assist in the
identification and protection of abused and neglected children. Central registries are used by states to aid social
services agencies including using the records to screen persons who will be entrusted with the care of children. For
more information see https://www.childwelfare.gov/topics/responding/resources-cps/central-registries/
The standards [of placement] shall include—
(i) requirements that each tribal social services agency described in
subparagraph (A)—
(I) perform criminal records checks, including fingerprint-based checks
of national crime information databases (as defined in section 534(f)(3)
of title 28);
(II) check any abuse registries maintained by the Indian tribe; and
(III) check any child abuse and neglect registry maintained by the State
in which the covered individual resides for information on the covered
individual, and request any other State in which the covered individual
resided in the preceding 5 years, to enable the tribal social services
agency to check any child abuse and neglect registry maintained by
that State for such information; and
(ii) any other additional requirement that the Indian tribe determines is
necessary and permissible within the existing authority of the Indian tribe,
such as the creation of voluntary agreements with State entities in order to
facilitate the sharing of information related to the performance of criminal
records checks.
NACSA § 2, codified at 25 U.S.C. § 3207(d)(2)(B).
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standards in the Tribal code, resolution, or otherwise, in accordance with Tribal laws and
customs.
The Tribe may also wish to include in its standards:
• Additional results (beyond the Federal baseline) that disqualify an individual for
placement;
• Who within the Tribe reviews and assesses the results of the character investigation;
• Processes by which background check information is safeguarded, maintained, and
disposed according to Federal and Tribal law
9
; and
• How to handle various situations that may arise, such as where a conviction has been
expunged.
9
For information on State processes detailing the officials and entities that may have access to the confidential
records of child abuse and neglect reports and investigations, the circumstances under which information may be
disclosed, and the appropriate use of confidential information see, “Disclosure of Confidential Child Abuse and
Neglect Records”
https://www.childwelfare.gov/topics/systemwide/laws-policies/statutes/confide/
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C. How to Conduct a Background Check
To best assess the suitability of potential caregivers to provide a safe home for children placed in
their care Tribes should access Tribal, State, and Federal criminal database systems. No single
system exists that captures all the information required for conducting character investigations of
prospective foster and adoptive parents and other out-of-home caregivers, as well as any adults
residing in the prospective caregivers’ households.
The legal authorities to access the various databases and registries depend upon the purpose for
which the search is being conducted. Under NACSA, Tribal social service agencies would be
accessing data for civil purposes. Tribes must conduct all of the following searches when
conducting a character investigation in compliance with the NACSA:
1. A fingerprint-based search of the national crime information database called the
Federal Bureau of Investigation’s (FBI’s) Next Generation Identification (NGI) system,
which contains criminal history record information (CHRI; also known as the “Identity
History Summary” or “rap sheet”).
2. A check of the National Sex Offender Public Website (NSOPW) and the National Sex
Offender Registry (NSOR).
3. A check of State Registries for Child Abuse and Neglect.
4. A check of Tribal Registries & Records.
Each of these searches could be thought of as a puzzle piece in a complete check of an
individual’s background.
Next
Generation
Identification
(NGI)
System
National
Sex Offender
Public
Website
Tribal
Abuse &
Neglect
Registries
State Abuse
& Neglect
Registries
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1. National Crime Information Database (Fingerprint Check)
Tribes should ensure they access the national crime information database, NGI, through a
fingerprint check of any covered individual.
What These Records Include:
The records in the FBI’s NGI System include fingerprints and corresponding criminal
history record information indexed in the Interstate Identification Index (III) System.
The III System is a national index of criminal histories throughout the United States
maintained by the FBI at the Criminal Justice Information Services (CJIS) Division. The
III System ties computerized criminal history record files of the FBI and the centralized
files maintained by each State into a national system. Included in the index are criminal
history records of arrests and court data voluntarily submitted by States, Tribal, and
Federal agencies. If a search reveals an arrest but does not indicate how the case was
disposed or adjudicated, Tribes should contact the State central record repository or the
Federal or Tribal contributing agency for the information.
How to Access:
To access the FBI’s NGI System using a fingerprint-based search for authorized
purposes, Tribes have several choices. Each of these fingerprint submission options
provides access to the FBI’s NGI System, but Tribes will want to review the benefits and
costs of each before choosing which option to use:
Each of these fingerprint submission options is discussed below and additional details are
provided in Table 1 at Appendix B.
National Crime
Information
Database
(NGI System)
(i) The State Identification Bureau;
(ii) The U.S. Department of Justice’s Tribal Access Program
(TAP);
(iii) An FBI-approved Channeler; or
(iv) Directly through hard-copy fingerprint submissions to the
FBI.
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i. Through the State Identification Bureau
Tribes may obtain access to FBI’s NGI System through the State Identification
Bureau or the State Criminal Justice Information (CJIS) System. This method is
commonly used by Tribes and is a familiar model for both Tribes and States.
Who to Contact to Obtain Access: For this option, the Tribe must contact the
State Identification Bureau or State CJIS Systems Officer (CSO) and enter into
one or more agreements to address the Tribe’s user rights and how the State will
bill and audit the Tribe for access. (A list of State Identification Bureaus is
available at: https://www.fbi.gov/services/cjis/identity-history-summary-
checks/state-identification-bureau-listing). Tribes should inform the State contact
of the Tribe’s need to access national crime information databases to perform
background checks on potential foster care homes for Indian children.
ii. Using the U.S. Department of Justice’s (DOJ) Tribal Access Program (TAP)
The DOJ launched the Tribal Access Program for National Crime Information
(TAP) in August 2015 to offer Tribes an additional method to access Federal
criminal databases for civil and criminal purposes, including the FBI’s NGI
System. Participating Tribes receive a kiosk containing a computer, flatbed
scanner, printer, camera, and fingerprint/palmprint scanner, connection through
DOJ to the FBI CJIS Division systems, and training and help desk assistance.
The TAP kiosk expedites fingerprint processing and usually provides results of
the national fingerprint-based background checks relatively quickly.
Who to Contact to Obtain Access: Tribes interested in participating in the TAP
should contact the DOJ at TRIBALACCESS@USDOJ.GOV. Tribes will want to
ask when the next application deadline is because applications are accepted
periodically (approximately annually).
Once selected as a DOJ TAP participant, a Tribe must execute a user fee
Memorandum of Agreement/Billing Agreement with the FBI’s CJIS Division.
iii. Using an FBI-approved Channeler
FBI-approved Channelers are private entities who, through contract with the FBI,
provide access to the NGI System, and work on behalf of an authorized Tribe to
conduct the national fingerprint-based checks. The FBI-Channeler submits
fingerprints, receives the results of the criminal history checks from the FBI’s
NGI System, and forwards those results to the authorized recipient. This option
also requires a contract between the authorized recipient and the FBI-approved
Channeler.
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Who to Contact to Obtain Access: For this option, the Tribe must send a letter to
the FBI Compact Officer requesting approval to use one of the current FBI-
approved Channelers. A current list of FBI-approved Channelers may be accessed
at: www.fbi.gov/services/cjis/compact-council/list-of-approved-channelers. If
the Tribe uses this option, the Tribe must enter into a contract with the FBI-
approved Channeler for the Channeler’s services.
Please note that some companies conduct other types of background checks, but
only FBI-approved Channelers may submit fingerprints to obtain CHRI contained
in the FBI’s NGI System.
iv. Directly through hard-copy fingerprint submissions to the FBI
Tribes may submit hard copy fingerprint cards directly to the FBI through the
U.S. mail. The FBI returns Identity History Summary responses to the Tribe via
the U.S. Postal Service, First Class Mail. This option requires a billing agreement
between the Tribe and the FBI, and requires the Tribe to apply for an Originating
Agency Identifier (ORI). Please note that this method is not an electronic process
and results in slower response times. Once the hard-copy fingerprint card arrives
at the FBI, the fingerprint card must be scanned into an electronic format prior to
processing. The FBI then returns the results by U.S. mail.
Who to Contact to Obtain Access: For this option, the Tribe must contact the FBI
at (304) 625-5590 and request a billing agreement to allow for the submission of
hard copy fingerprint cards.
BIA plans to offer training to help Tribes determine which fingerprint submission option
is best for them, given the costs and benefits of each.
2. National Sex Offender Public Website (NSOPW)
What These Records Include:
The NSOPW links public sex offender registration and notification systems of
participating States, territories, and Tribes into one national search site. The information
on the website is provided by each jurisdiction, so available search criteria are limited to
what each individual jurisdiction may provide based on State, Territory or Tribal law
and/or policies and procedures. While the Sex Offender Registration and Notification
Act sets out a national standard for the information that must be made available, not all
jurisdictions fully comply with these standards. Information about each State, Tribe and
Territory’s systems can be found on the Department of Justice, Sex Offender Sentencing,
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Monitoring, Apprehending, Registering and Track Office (SMART) website at:
www.smart.gov.
How to Access:
Tribes may access the National Sex Offender Public Website (NSOPW) at
www.nsopw.gov. By linking all the registries, NSOPW allows for nationwide searches
of sex offender information, as well as local searches within a geographic radius.
Individuals may also sign up to be notified of changes to sex offender registration
information in their area.
3. State Child Abuse and Neglect Registries
What These Records Include:
Every State has procedures for maintaining records of child abuse and neglect. Most
States maintain a central registry, which is a centralized database of child abuse and
neglect investigation records. The information contained in central registries varies by
State, usually the information includes the nature of the harm to the child; the name of the
alleged perpetrator(s); and the findings of any investigations. Some States maintain all
investigated reports of abuse and neglect in their central registries, while others maintain
only substantiated reports.
10
When a name appears on a state registry it does not necessarily mean that an individual
was convicted of a crime. Even where an individual was not prosecuted or is found not
guilty their name may remain in some State child abuse and neglect registries unless they
have legally petitioned to have their name removed.
How to Access:
The NACSA requires a search of registries in each State in which the covered individual
resides, and any other State in which the covered individual resided in the preceding 5
years. Access to information maintained in registries and department records also varies
among States.
11
Generally the registries are not available to the public, but can be
accessed by following each State’s process for obtaining access. The Tribe should
contact Child Protective Services, Department of Children and Family, Department of
10
For more information on State child abuse and neglect registries, see Child Welfare Information Gateway. (2014).
Establishment and maintenance of central registries for child abuse reports. Washington, DC: U.S. Department of
Health and Human Services, Children’s Bureau.
https://www.childwelfare.gov/topics/systemwide/laws-
policies/statutes/centreg/
11
See Child Welfare Information Gateway’sGateway (2013)Gateway’s Disclosure of Confidential Child Abuse and
Neglect Records: https://www.childwelfare.gov/systemwide/laws_policies/statutes/confide.cfm
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Human Services, or a similar agency in each relevant State for access. Third party
websites may also offer lists of State contacts for child abuse registry background checks.
Limitations to Consider:
States are not uniform in the level of access they will allow to their child abuse and
neglect registries. BIA recognizes that, in some cases, Tribes may have difficulty
obtaining access, and strongly encourages States to review their policies denying access
to child abuse and neglect records and determine whether revisions are appropriate in the
interest of protecting children’s safety.
Tribes should also clarify with the State what records are included in the registries, as far
as whether only substantiated or indicated reports of maltreatment. Approximately 30
States and the District of Columbia make information available to employers in the child
care business for individuals applying to be child care or youth care providers, but such
information is generally limited to whether there are substantiated or indicated reports of
child maltreatment.
12
Under NACSA’s Federal baseline, Tribes need only look for
convictions of certain crimes, but the Tribe may have additional standards for what
disqualifies an individual from being a foster care parent or employee of a foster care
institution.
4. Tribal Abuse Registries
How to Access:
Tribes should contact the Tribal court and Tribal law enforcement for any Tribal court
records (e.g., warrants, convictions) related to the covered individuals and, if applicable,
search convictions and warrants posted on the Tribal website.
What These Records Include:
This information varies depending on the Tribe and the information maintained.
Limitations to Consider:
Tribes are not uniform in the level of access they will allow to other Tribes of their child
abuse and neglect registries. BIA recognizes that, in some cases, Tribes seeking to place a
child may have difficulty obtaining access, and strongly encourages all Tribes to review
their policies denying access to child abuse and neglect records and determine whether
revisions are appropriate in the interest of protecting children’s safety.
12
Ibid.
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Tribes seeking to place a child should also clarify with the other Tribe what records are
included in the registries. Under NACSA’s Federal baseline, Tribes need only look for
convictions of certain crimes, but the Tribe may have additional standards for what
disqualifies an individual from being a foster care parent or employee of a foster care
institution.
D. How to Adjudicate the Results of the Background Check
The Tribe determines how it uses the results of fingerprint and registry checks, subject to the
following Federal baseline: the Tribe may not approve a foster care placement of an Indian
child with an adult individual who has been found by a Federal, State, or Tribal court to have
committed any crime listed in 42 U.S.C. 671(a)(20)(a)(i) or (ii).
In other words, Tribes may not approve any foster care placement with an adult individual who
resides in a foster family home or is an employee of an institution who has been found by a
Federal, State, or Tribal court to have a felony conviction
for any of the following crimes:
Committed at any time—
• Child abuse or neglect;
• Spousal abuse;
• A crime against children (including child
pornography); or
• A crime involving violence (including rape, sexual
assault, or homicide, but not including other
physical assault or battery).
Committed within the past 5 years—
• Physical assault;
• Battery; or
• Drug-related offense.
Tribes may add onto this Federal baseline additional results to disqualify an individual from
being a foster care parent or employee at a foster care institution. For example, Tribes may
decide to include felonies for alcohol-related offenses among those that would disqualify an
individual if committed within the past 5 years. Federal criminal law generally limits “drug-
related offense” to offenses involving Federal “controlled substances,” which excludes alcohol.
42 U.S.C. 671(a)(20)(A)
(i) … a record check reveals a
felony conviction for child abuse or
neglect, for spousal abuse, for a
crime against children (including
child pornography), or for a crime
involving violence, including rape,
sexual assault, or homicide, but not
including other physical assault or
battery…;
(ii) …a record check reveals a
felony conviction for physical
assault, battery, or a drug-related
offense… committed within the past
5 years…
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Tribes have the discretion within their sovereign authority to screen and approve foster care
placements beyond this Federal baseline.
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E. Ensuring Compliance with the NACSA Under Title IV-E
Tribes that receive funding through title IV-E and IV-B of the Social Security Act
13
(administered by the U.S. Department of Health and Human Services) for child welfare
programs are required to license foster family homes and institutions and conduct criminal and
child abuse background checks. The NACSA’s requirements for background checks also apply
to Tribes operating programs under title IV-E and IV-B. The NACSA and Title IV-E require
child abuse and neglect registry checks and fingerprint-based checks of the national criminal
information databases for individuals residing in prospective foster family homes. Both NACSA
and Title IV-E disqualify an applicant if he or she or any household member was convicted of a
crime that raises concerns about the family’s ability to provide a safe and stable home
environment for the child. However, the requirements in each law differ slightly.
The following table is intended to help Tribes operating Title IV-E and Title IV-B programs to
comply with both the Federal program requirements and with the NACSA. The table
recommends actions based on identifying the more stringent requirement with which to comply
or, where each law has a component that is more stringent than the other, recommended actions
based on a combination of the requirements. The following table focuses only on foster care
placement as required under NACSA and Title IV-E.
13
42 U.S.C. 671(a)(20) (2015).
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Title IV-E Requirement
NACSA Requirement
Recommended
Prior to approval of
or placement of a
child in a foster
home, a
background check
must be conducted
for:
Any prospective foster parent
A
and any other adult living in the
foster home.
B
For Tribes operating a kinship
guardianship assistance
program
C
: Any relative guardian
and any other adult living in the
home of a relative guardian.
Any individual over age 18
residing in the household in
which a foster care placement
will be made.
All individuals over age 18
residing in a prospective
foster family home.
A
For Tribes operating a
kinship guardianship
assistance program: Any
relative guardian and any
other adult living in the home
of a relative guardian.
Prior to approval of
or placement of a
child in a foster care
institution, a
background check
must be conducted
for:
(No specific requirement except
that the institution’s licensing file
must contain documentation
verifying that safety
considerations with respect to
the institution’s staff have been
addressed).
Any individual over age 18
employed at the institution in
which a foster care placement
will be made.
All individuals over age 18
residing employed at a foster
care institution.
When to conduct a
criminal records
check, including
fingerprint-based
checks of national
crime information
databases:
Before any prospective foster or
adoptive parent may be
approved for placement of a
child, regardless of whether
foster care maintenance
payments or adoption
assistance payments are to be
made on behalf of the child.
D
Tribes operating a kinship
guardianship assistance
program: Before the relative
guardian may receive kinship
guardianship assistance
payments on behalf of the
child.
E, F
Prior to approving the
placement of a child (“no
foster care placement shall be
finally approved”) and prior to
issuing a foster care license
(“no foster care license shall
be issued”)
Prior to approving the
placement of a child and
prior to issuing a foster care
license, regardless of
whether foster care
maintenance payments or
adoption assistance
payments are to be made on
behalf of the child.
B
Tribes operating a kinship
guardianship assistance
program: Before the relative
guardian may receive kinship
guardianship assistance
payments on behalf of the
child.
C
What State records
to check:
Child abuse and neglect
registries of the State in which a
prospective parent or other adult
living in the home resides or has
resided in the preceding 5
years.
G
Child abuse and neglect
registries of State in which the
covered individual resides,
and any other State in which
the covered individual resided
in the preceding 5 years.
Child abuse and neglect
registries of State in which
the covered individual
resides, and any other State
in which the covered
individual resided in the
preceding 5 years.
D
What Tribal records
to check:
(No specific requirement.)
Any child abuse and neglect
registry maintained by the
Tribe.
Any child abuse and neglect
registries maintained by a
Tribe in whose jurisdiction a
covered individual resides or
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has resided in the preceding
5 years.
How to interpret the
results of the
background check:
For criminal record checks there
is a permanent and a five-year
prohibition on approval of a
prospective foster or adoptive
parent or prospective employee
in a foster care institution as
follows:
Permanent prohibition – No
approval may be granted of a
foster care home or a
prospective foster or adoptive
parent where a court of
competent jurisdiction has
determined the existence of a
felony conviction for child abuse
or neglect, for spousal abuse,
for a crime against children
(including child pornography), or
for a crime involving violence
including rape, sexual assault,
or homicide (excluding other
physical assault or battery).
Five-year prohibition:
No approval may be granted if a
court of competent jurisdiction
has determined one of the
following felonies was
committed in the past 5 years:
physical assault, battery or a
drug-related offense.
Child abuse and neglect
registry:
Title IV-E agencies have
discretion in considering the
results of the child abuse and
neglect registry check and
whether to approve the
prospective foster or adoptive
parent or other adult residing in
the home.
H
NACSA prohibits a foster care
placement if an adult
individual who resides in a
foster family home or an
employee of an institution has
been found by a Federal,
State, or Tribal court to have
committed any crime listed 42
U.S.C. 671(a)(20)(a)(i) or (ii).
[See page 6, above for the list
of crimes covered
permanently and for a five-
year period].
Prohibit a foster care
placement if an adult
individual who resides in a
foster family home or an
employee of an institution
has been found by a Federal,
State, or Tribal court to have
committed any crime listed
42 U.S.C. 671(a)(20)(a)(i) or
(ii), as a baseline.
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Applicability to
emergency
placements:
Same provisions apply as for
foster care.
No requirement.
Apply foster care background
check requirements for
emergency placements.
Recertification of
foster family homes
and institutions:
No requirement.
NACSA requires Tribes to
recertify foster family homes
and institutions periodically,
including safety standards and
background checks.
Recertify foster family homes
and institutions periodically,
including safety standards
and background checks, in
compliance with NACSA.
A
Adam Walsh Child Protection and Safety Act of 2006 (P.L. 109-248) [42 U.S.C. 671(a)(20)].
B
The Child Abuse Prevention and Treatment Act (CAPTA) 42 U.S.C. 5106a(b)(2)(B)(xxii) (2010).
C
The Title IV-E Guardianship Assistance Program (GAP) is a formula grant that helps States, Indian
Tribes, Tribal Organizations and Tribal Consortia (hereafter “Tribes”) who opt to provide guardianship
assistance payments for the care of children by relatives who have assumed legal guardianship of eligible
children for whom they previously cared as foster parents. For those States and Tribes that opt to
participate in the program, federal assistance may be used only to support the care of children discharged
from foster care to legal guardianship who meet the eligibility requirements specified in the statute. Funds
may also be used to support siblings of eligible children in certain situations as specified in the statute.
Fostering Connections to Success and Increasing Adoptions Act of 2008 (P.L. 110-351).
D
Adam Walsh Child Protection and Safety Act of 2006 (P.L. 109-248)
E
42 U.S.C. 671(a)(20)(C)
F
If the IV-E agency has established an appropriate timeframe that such background checks remain valid
and such timeframe has not expired for the foster parent who previously received the background checks
and is now seeking to become a prospective relative guardian, the IV-E agency can consider the
requirement of section 471(a)(20) of the Act met without conducting new background checks (Child Welfare
Policy Manual 8.4F Q/A #13).
G
42 U.S.C. 671(a)(20)(B)
H
For examples of state title IV-E agency requirements see “Background Checks for Prospective Foster,
Adoptive, and Kinship Caregivers” (2015): https://www.childwelfare.gov/topics/systemwide/laws-
policies/statutes/background/
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III. Promising Practices Employed by Tribes for Emergency Placements
The NACSA does not authorize emergency placements; however, creating Tribal policies and
precautions are critical to the safety of Indian children when emergency out-of-home placement
is required because parents are unable to provide for the welfare of their children.
Promising practices some Tribes use include:
• Requiring all placements, emergency or otherwise, to undergo fingerprint-based
background checks where authorized by law, without distinguishing the type of
placement.
• Requiring persons serving as emergency placements to have a connection with the child
or parents (e.g., as required in New York State).
• Securing relative placements in emergencies to provide familiarity for the child during a
turbulent time and promote family preservation goals.
• Obtaining background checks of people who are potential future emergency placements
where authorized by law, so that pre-checked placements are available on an emergency
basis.
• Tribal licensing of individual foster parents before the need for a specific placement
arises where authorized by law.
• Assigning a dedicated staff person to conduct background checks, conduct on-going site
visits with placements, license and recertify placements, etc.
• Limiting emergency placement to 30 days or less or until the time background checks
under Section II.C. of this guidance are complete.
Two additional promising practices employed by Tribes for emergency foster care placements
are described below:
A. Emergency Shelters
During an emergency removal of a child from their home, when a relative placement or
foster home is not immediately available, emergency shelters established in Tribal
communities provide safe temporary placements. Either the Tribe or the State licenses
each emergency shelter. Tribal staff at emergency shelters undergo background checks
in compliance the Indian Child Protection and Family Violence Prevention Act if the
Tribe receives funds under the Indian Self-Determination and Education Assistance Act
or Tribally Controlled Schools Act of 1988. See 25 U.S.C. § 3207(c).
While emergency shelters are a critical resource in ensuring safety of Indian children
when parents are unable to provide for their welfare, no Federal funding is currently
available to establish or maintain emergency shelters.
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B. Purpose Code X (Name-Based Criminal Records Search Followed by the
Delayed Submission of Fingerprints for Emergency Placements)
Preliminary name-based checks of the III System using Purpose Code X are for the
exclusive purpose of conducting an initial criminal history check of residents with whom
children are to be temporarily placed during exigent circumstances. The name-based
check uses biographic information, such as an individual’s name and date of birth, to
determine whether an individual may be the subject of a criminal record based on the
biographic information provided. Since a positive identification linking an individual to
a criminal history record can only be made using fingerprints, the individual’s
fingerprints must be submitted to the FBI within 15 calendar days.
As background, in October 2000, the National Crime Prevention and Privacy Compact
(Compact) Council (Council) approved the Fingerprint Submission Requirements Rule
(Rule)
14
, often referred to as Purpose Code X, to allow direct access to the III System for
criminal history information prior to the delayed submission of fingerprints in exigent
circumstances. Most States
15
and some Federal agencies are authorized to use the Rule
to conduct preliminary name-based checks of the III System in emergency placement
situations. The III name-based checks must be followed-up with a fingerprint submission
within 15 calendar days from the date of the name-based check. For those States
authorized to use the Rule, such checks are done through the State criminal history record
repository.
In May 2015, the Council authorized the BIA to use Purpose Code X, on behalf of
federally recognized Tribes, to access the III System on a delayed fingerprint submission
basis when conducting criminal history record checks of residents with whom children
are to be temporarily placed during exigent circumstances. The BIA’s authority to utilize
Purpose Code X is not intended to replace existing State laws or procedures governing
such checks, but rather provide an option to those Tribes that are unable to obtain
criminal history information through the State. As of the date of issuance of this
Guidance, Washington, Montana, and Arizona allow Tribal social services agencies to
use the State Purpose Code X programs; thus, Tribes located in these States are not
eligible to participate in BIA’s Purpose Code X..
For those federally-recognized Tribes unable to obtain criminal history information
through the State, the BIA uses Purpose Code X to conduct the preliminary III System
name-based checks to provide Tribal police departments or Tribal social service agencies
with 24-hour access to preliminary name-based criminal history record information. The
14
28 CFR part 901.
15
See the following FBI website for a visual representation of Purpose Code X authorized users:
https://www.fbi.gov/file-repository/purpose-code-x-authorized-users.pdf/view
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III System name-based checks are only one factor used in determining the suitability of
placing the child temporarily in the household. In accordance with the Council’s Rule,
applicant fingerprints must be submitted to the FBI within 15 calendar days from the date
of the preliminary name-based check if the child remains in the placement. Fingerprint
submissions can be completed by any of the methods listed in Section II.A of this
document.
If based on all other character investigation factors, the Tribal social services agency
determines that an applicant is disqualified for emergency child placement and the child
is not placed or is removed from the applicant’s care, there is no expectation that
fingerprints must be submitted within the specified timeframe. However, since a positive
identification linking an individual to a criminal history record can only be made using
fingerprints, a disqualified applicant should be given the opportunity to challenge the
accuracy of the information in the record as provided in 28 CFR 50.12, by providing
fingerprints, even if a child placement is not made.
Federally-recognized Tribes interested in using the BIA’s Purpose Code X authority must
submit a request to the BIA Office of Justice Services (OJS) and include:
• The official name and address of the authorized agency requesting and receiving
the CHRI.
• The method in which the follow-up fingerprints will be submitted to FBI.
• A request for assignment of a T-ending ORI to the Tribal SSA.
The OJS then confirms the Tribe is authorized to access the CHRI and forwards the
request to the FBI Compact Officer and the State CJIS Systems Officer (CSO), if
applicable. If the request is approved, the FBI will assign the T-ending ORI and Z-
ending ORI, if necessary. The FBI Compact Officer will provide the written approval to
the OJS, and the OJS will provide a copy of the written approval to the Tribe.
A template letter is included at Appendix C. For additional information on BIA’s
Purpose Code X program, contact BIA OJS at: (202) 208-5787 or
BIA recognizes that some, if not all, of these promising practices may not be feasible for Tribes
facing resource constraints and a lack of available placements in their Tribal communities; BIA
will continue to seek promising practices that are both effective and require minimal resources.
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IV. Self-Reporting by Foster Care Homes and Institutions
This guidance recommends Tribes establish self-reporting requirements for foster care homes or
institutions in which any covered individual resides if the head of the household or the operator
of the institution has knowledge that the covered individual:
• Was convicted of committing one of the crimes listed at 42 U.S.C. § 671(a)(20)(A)(i) or
(ii), or
• Is listed on a Tribal child abuse and neglect registry; or
• Is listed on a State child abuse and neglect registry for a State in which the individual
resides or resided in the past 5 years.
It is recommended that Tribes include self-reporting requirements both in their standards for
placement and in every Placement Contract or Agreement between the social services program
and the foster care placement.
With regard to foster care institutions, Tribes should require any operator of a foster care
institution to require employees, as a condition of employment with the institution, to report to
the operator if they are found to have committed any of the listed crimes or become listed on a
Tribal or State registry. Likewise, Tribes may wish to include a requirement for that condition as
part of the license terms for the foster care institution.
With regard to family foster care placements, the burden of self-reporting may be more onerous
because individuals may move in and out of the home without any formal agreement (as opposed
to foster care institutions, which have employment contracts of some kind). Additionally, many
Tribal communities are not static, in that adults may move in and out of households frequently.
Tribes may choose to provide more detail on when a head of household is expected to self-report
in a manner that best accommodates the culture of the Tribal community. Regardless, serving as
a head of household requires a high level of vigilance and control over the home. This Guidance
is not intended to discourage individuals from volunteering to serve as heads of households
…Self-reporting requirements for foster care homes or institutions in which any
covered individual… resides if the head of the household or the operator of the
institution has knowledge that the covered individual—
(i) has been found by a Federal, State, or tribal court to have committed
any crime listed in [42 U.S.C. § 671(a)(20)(A) (i) or (ii)]; or
(ii) is listed on [any abuse registries maintained by the Indian tribe or
any
child abuse and neglect registry maintained by the State in which the
covered individual resides or resided in the preceding 5 years]…
NACSA § 2, codified at 25 U.S.C. § 3207(d)(5)(B).
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through threat of some punitive action; rather it offers recommendations. Specifically, this
Guidance recommends the following to heads of households:
• Report to the Tribal social services agency if any new person age 18 or over will be
moving into the home;
• Report to the Tribal social services agency any changes to membership of the household
or access to the child;
• Announce to everyone in the home that they must report to you if, at any time, they are
found to have committed any of the listed crimes or become listed on a Tribal or State
registry;
• Limit adult overnight guests, and access to the household in general, to individuals you
are confident have passed, or would pass if subject to, the background checks required by
NACSA.
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V. Certifying Compliance with the NACSA
The NACSA requires this Guidance to establish procedures for Tribes to certify compliance with
the NACSA. Specifically, Tribes must certify that they have established standards of placement
for foster care homes and institutions. Recommended procedures for Tribes to certify
compliance with the NACSA include:
• Outline the standards for foster care placement in P.L. 93-638 Contracts and
Compacts/AFAs and Title IV-E Agreements regarding compliance with the Act.
• Incorporate standards for foster care placement into Tribal law (e.g., codes, policy, or
resolution) governing the Tribe’s social services agency.
• Use a checklist that verifies the individual elements of the NACSA are met prior to
approving a foster care placement or issuing a foster care license.
• For each foster care home or other foster care placement, require a Tribal representative
to verify compliance with the NACSA (using the checklist established above) and sign
off on the verification.
• Approve the placement or license only after verifying compliance with the Act, including
verification that:
o All supporting documentation is on file;
o The background check and registry checks were made and a favorable response to
each was received;
o Other licensing requirements (home study, safety plan, safety check on the home,
medical exams, personal references, job-verification, etc.) are met; and
o A recertification date is identified and appropriately documented.
The NACSA also requires this guidance recommend procedures for Tribes to recertify foster
family homes and institutions periodically, including safety standards and background checks.
“Recertification” is essentially a verification that the individual elements of the NACSA are met
for the foster care home or institution. It is recommended that Tribes recertify each foster family
home and institution at least every five years and designate a specific individual as responsible
for the recertification, with accountability for documenting and reporting the results of the
recertification to another specified individual. Then, for each foster care home or other foster
care placement, that designated Tribal representative would sign off and approve the placement
or license only after verifying compliance with the Act, including verification that:
o All supporting documentation is on file;
o The background and registry checks of each individual living in the foster care
home or employed by the foster care institution were made within the past five
years and a favorable response to each was received;
o Other licensing requirements (home study, safety plan, safety check on the home,
medical exams, personal references, job-verification, etc.) are met; and
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o A future recertification date is identified and appropriately documented.
A complete background check every five years may not be necessary, if the Tribe requires the
foster care home or foster care institution to report any updates and changes or attest that no
changes have occurred.
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Appendix A
Indian Child Protection and Family Violence Prevention Act,
As Amended by the Native American Children’s Safety Act (paragraph (d))
25 U.S.C. 3207
§3207. Character investigations
(a) By Secretary of the Interior and Secretary of Health and Human Services
The Secretary and the Secretary of Health and Human Services shall-
(1) compile a list of all authorized positions within their respective departments the duties and responsibilities
of which involve regular contact with, or control over, Indian children,
(2) conduct an investigation of the character of each individual who is employed, or is being considered for
employment, by the respective Secretary in a position listed pursuant to paragraph (1), and
(3) prescribe by regulations minimum standards of character that each of such individuals must meet to be
appointed to such positions.
(b) Criminal records
The minimum standards of character that are to be prescribed under this section shall ensure that none of the
individuals appointed to positions described in subsection (a) have been found guilty of, or entered a plea of nolo
contendere or guilty to, any felonious offense, or any of two or more misdemeanor offenses, under Federal, State,
or tribal law involving crimes of violence; sexual assault, molestation, exploitation, contact or prostitution;
crimes against persons; or offenses committed against children.
(c) Investigations by Indian tribes and tribal organizations
Each Indian tribe or tribal organization that receives funds under the Indian Self-Determination and Education
Assistance Act [25 U.S.C. 5301 et seq.] or the Tribally Controlled Schools Act of 1988 [25 U.S.C. 2501 et seq.]
shall-
(1) conduct an investigation of the character of each individual who is employed, or is being considered for
employment, by such tribe or tribal organization in a position that involves regular contact with, or control over,
Indian children, and
(2) employ individuals in those positions only if the individuals meet standards of character, no less stringent
than those prescribed under subsection (a), as the Indian tribe or tribal organization shall establish.
(d) By tribal social services agency for foster care placements in tribal court proceedings
(1) Definitions
In this subsection:
(A) Covered individual
The term "covered individual" includes-
(i) any individual 18 years of age or older; and
(ii) any individual who the tribal social services agency determines is subject to a criminal records check
under paragraph (2)(A).
(B) Foster care placement
The term "foster care placement" means any action removing an Indian child from a parent or Indian
custodian for temporary placement in a foster home or institution or the home of a guardian or conservator if-
(i) the parent or Indian custodian cannot have the child returned on demand; and
(ii)(I) parental rights have not been terminated; or
(II) parental rights have been terminated but the child has not been permanently placed.
(C) Indian custodian
The term "Indian custodian" means any Indian-
(i) who has legal custody of an Indian child under tribal law or custom or under State law; or
(ii) to whom temporary physical care, custody, and control has been transferred by the parent of the
child.
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(D) Parent
The term "parent" means-
(i) any biological parent of an Indian child; or
(ii) any Indian who has lawfully adopted an Indian child, including adoptions under tribal law or custom.
(E) Tribal court
The term "tribal court" means a court-
(i) with jurisdiction over foster care placements; and
(ii) that is-
(I) a Court of Indian Offenses;
(II) a court established and operated under the code or custom of an Indian tribe; or
(III) any other administrative body of an Indian tribe that is vested with authority over foster care
placements.
(F) Tribal social services agency
The term "tribal social services agency" means the agency of an Indian tribe that has the primary
responsibility for carrying out foster care licensing or approval (as of the date on which the proceeding
described in paragraph (2)(A) commences) for the Indian tribe.
(2) Criminal records check before foster care placement
(A) In general
Except as provided in paragraph (3), no foster care placement shall be finally approved and no foster care
license shall be issued until the tribal social services agency-
(i) completes a criminal records check of each covered individual who resides in the household or is
employed at the institution in which the foster care placement will be made; and
(ii) concludes that each covered individual described in clause (i) meets such standards as the Indian
tribe shall establish in accordance with subparagraph (B).
(B) Standards of placement
The standards described in subparagraph (A)(ii) shall include-
(i) requirements that each tribal social services agency described in subparagraph (A)-
(I) perform criminal records checks, including fingerprint-based checks of national crime information
databases [sic] (as defined in section 534(f)(3) of title 28);
(II) check any abuse registries maintained by the Indian tribe; and
(III) check any child abuse and neglect registry maintained by the State in which the covered
individual resides for information on the covered individual, and request any other State in which the
covered individual resided in the preceding 5 years, to enable the tribal social services agency to check
any child abuse and neglect registry maintained by that State for such information; and
(ii) any other additional requirement that the Indian tribe determines is necessary and permissible within
the existing authority of the Indian tribe, such as the creation of voluntary agreements with State entities in
order to facilitate the sharing of information related to the performance of criminal records checks.
(C) Results
Except as provided in paragraph (3), no foster care placement shall be ordered in any proceeding described in
subparagraph (A) if an investigation described in clause (i) of that subparagraph reveals that a covered
individual described in that clause has been found by a Federal, State, or tribal court to have committed any
crime listed in clause (i) or (ii) of section 671(a)(20)(A) of title 42.
(3) Emergency placement
Paragraph (2) shall not apply to an emergency foster care placement, as determined by a tribal social services
agency.
(4) Recertification of foster homes or institutions
(A) In general
Not later than 2 years after June 3, 2016, each Indian tribe shall establish procedures to recertify homes or
institutions in which foster care placements are made.
Guidance: Background Checks for Foster Care Placements under the NACSA
U.S. Department of the Interior – Bureau of Indian Affairs
Version 1 - May 2018
(B) Contents
The procedures described in subparagraph (A) shall include, at a minimum, periodic intervals at which the
home or institution shall be subject to recertification to ensure-
(i) the safety of the home or institution for the Indian child; and
(ii) that each covered individual who resides in the home or is employed at the institution is subject to a
criminal records check in accordance with this subsection, including any covered individual who-
(I) resides in the home or is employed at the institution on the date on which the procedures
established under subparagraph (A) commences;
1
and
(II) did not reside in the home or was not employed at the institution on the date on which the
investigation described in paragraph (2)(A)(i) was completed.
(C) Guidance issued by the Secretary
The procedures established under subparagraph (A) shall be subject to any regulation or guidance issued by
the Secretary that is in accordance with the purpose of this subsection.
(5) Guidance
Not later than 2 years after June 3, 2016, and after consultation with Indian tribes, the Secretary shall issue
guidance regarding-
(A) procedures for a criminal records check of any covered individual who-
(i) resides in the home or is employed at the institution in which the foster care placement is made after
the date on which the investigation described in paragraph (2)(A)(i) is completed; and
(ii) was not the subject of an investigation described in paragraph (2)(A)(i) before the foster care
placement was made;
(B) self-reporting requirements for foster care homes or institutions in which any covered individual
described in subparagraph (A) resides if the head of the household or the operator of the institution has
knowledge that the covered individual-
(i) has been found by a Federal, State, or tribal court to have committed any crime listed in clause (i) or
(ii) of section 671(a)(20)(A) of title 42; or
(ii) is listed on a registry described in clause (II) or (III) of paragraph (2)(B)(i);
(C) promising practices used by Indian tribes to address emergency foster care placement procedures under
paragraph (3); and
(D) procedures for certifying compliance with this chapter.
*A Channeler is a contractor who has a direct connection with the FBI to pass fingerprint submissions and receive CHRI. Acronyms:
List of FBI-approved Channelers is located at: CJIS TEP – Criminal Justice Information Services Division Tribal Engagement Program
www.fbi/gov/services/cjis/compact-council/list-of-approved-channelers CSO – CJIS Systems Officer
Security and Management Outsourcing Standard for Channelers (Outsourcing Standard) is located at: MOU – Memorandum of Understanding
www.fbi.gov/file-repository/security-and-management-control-outsourcing-standard-for-channelers-2.pdf/view CHRI – Criminal History Record Information
CJIS Security Policy is located at: www.fbi.gov/services/cjis/cjis-security-policy-resource-center TAP – Tribal Access Program
Contact CJIS TEP at: [email protected]
Subject to Change. For the most current version, please contact the FBI CJIS Division. May 2018
Appendix B
Fingerprint Submission Options for Tribes
Noncriminal Justice Background Checks for Employment and Licensing
Fingerprint
Submission Option
How to Obtain Access
Cost of Fingerprint
Submission
Available Methods of Submitting Fingerprint Cards
Method Tribe
Receives Results
Audit Requirements
STATE
REPOSITORY
Contact CJIS TEP for State
CSO contact information
Contact State CSO
Applicable agreements with
State Repository, may
include billing agreements
and/or MOU
$12.00 (this fee is
subject to change) plus
State Fee, where
applicable
Work with State on method of collection (hard copy or
livescan)
Tribe orders FD-258 fingerprint cards online at FBI.gov
Coordinate with State on receipt of cards from Tribe (mail/e-
mail/etc.)
State submits fingerprints electronically to FBI’s NGI System
Tribe will receive CHRI
results as agreed upon with
State by mail/e-mail, etc.
FBI will triennially audit
the State and may audit the
Tribe
State will audit the Tribe in
accordance with their State
audit plan
DOI TRIBAL
ACCESS
PROGRAM (TAP)
Billing Agreement with FBI
$12.00 (this fee is
subject to change)
DOJ TAP Kiosk is available for electronic fingerprint
submission to FBI
Tribe collects prints
Fingerprints electronically collected through kiosk or
Fingerprints may be obtained on an FD-258 fingerprint
card and submitted electronically through the DOJ TAP
kiosk
Tribe will receive CHRI
results via the Law
Enforcement Enterprise
Portal
Tribe subject to FBI Audit
FBI-APPROVED
CHANNELER
Contract with Channeler to
include billing agreement
Request Letter to FBI
Compact Officer for
approval to outsource
Channeling function
$12.00 (this fee is
subject to change) plus
Channelers Fee (Fees
vary by Channeler)
Cards provided by Channeler
Work with Channeler on method of fingerprint capture (hard
copy or livescan)
Work with Channeler on submission process
Channeler converts any hard cards received to electronic
format
Channeler submits electronically to FBI’s NGI System
Tribe will receive CHRI
results via U.S. Mail, e-mail,
or website (depends on
Channelers process)
CHRI must be sent to the
Tribe. A Channeler may
NOT send CHRI directly to
a Contractor or Vendor.
FBI will triennially audit
the Channeler and may
audit Tribe
Tribe may audit Channeler
to the Outsourcing Standard
for Channelers or any
contract requirements
DIRECT TO FBI
Billable Memorandum of
Agreement with FBI
$12.00 (this fee is
subject to change)
Tribe orders FD-258 fingerprint cards online at FBI.gov
Tribe collects prints (if livescan device, can take prints
electronically and print onto the hard cards)
Tribe mails cards directly to FBI
Manual processing at the FBI – will take longer (manual
in/manual out)
Tribe will receive CHRI
results received via U.S.
Mail
Tribe subject to FBI Audit
Appendix C
TEMPLATE REQUEST TO USE BIA’s PURPOSE CODE X PROGRAM
[Date]
Charles Addington, Director
Office of Justice Services Headquarters
Bureau of Indian Affairs
1849 C Street NW, MS-2603-MIB
Washington, DC 20240
RE: Request for [Insert Federally Recognized Tribe’s name] to utilize the fingerprint
submission requirements rule for the emergency placement of children in exigent
circumstances (Purpose Code X)
Dear Director Addington:
I am writing to request that the Bureau of Indian Affairs (BIA), on behalf of [Insert
Federally Recognized Tribe’s name], a federally recognized tribe, apply to utilize the
Fingerprint Submission Requirements Rule (Title 28, Code of Federal Regulations, part 901)
pursuant to the National Crime Prevention and Privacy Compact Council’s (Council)
approval granted on May 13, 2015. The authority to access criminal history record
information (CHRI) is pursuant to Public Law (Pub. L.) 101-630, the Indian Child Protection
and Family Violence Prevention Act (Title 25, United States Code, Sections 3205 and 3207).
The approved proposal allows the BIA to conduct preliminary criminal history name check
inquiries of the Interstate Identification Index (III) System using Purpose Code “X” to screen
residents with whom children are to be temporarily placed during exigent circumstances.
[Insert Federally Recognized Tribe’s name] will be responsible for coordinating the
submission of follow up fingerprints of each required resident within the required time
frame, not to exceed fifteen calendar days from the date of the initial III inquiry.
The following implementation information is provided to support this request:
1) The official name, address, and phone number of the authorized agency requesting
and receiving CHRI is:
Name of Agency:
Address:
Phone:
2) The method in which the required follow up fingerprints will be submitted:
Via the state criminal history record repository to the FBI.
Via an FBI-approved Channeler to the FBI: [insert contractor’s name].
Via hard copy fingerprint card submission directly to the FBI. Please note: For
applicant fingerprint processing, the tribe must have an FBI Billing Agreement in
place with the FBI.
3) Information for the FBI to assign a T-ending Originating Agency Identifier (ORI) to the
designated noncriminal justice agency listed below.
Name of Agency:
Address:
Phone:
Point of Contact:
Further, the [Insert Federally Recognized Tribe’s name] understands that this name-based
access to the III System is for the express purpose of screening residents for emergency child
placement and is the only authorized use of Purpose Code “X.” Only upon receipt of written
approval from the FBI Compact Officer will [Insert Federally Recognized Tribe’s name]
begin utilizing the Fingerprint Submission Requirements Rule when placing children during
exigent circumstances.
Sincerely,
[insert name]
[insert title]
[insert phone number]
[insert email address]
