An explanation on how school contractor criminal history background checks will be managed going forward has been released by the Texas Education Agency (TEA).
As a result of a 2019 FBI audit, the Department of Public Safety (DPS) will change how it grants Clearinghouse access to schools and contractors for purposes of reviewing criminal history of employees and applicants under Texas Education Code (TEC) §22.0834 and §22.08341. Notice of the changes was emailed to school districts and charter schools and posted on the TEA website.
Applicants for employment and employees of contractors providing services to school districts or charter schools must be fingerprinted before beginning or continuing work, if those persons have continuing duties related to the contracted services and the opportunity for direct contact with students. The specific rules that apply to contractors’ employees and applicants are separated by state law into two categories: (1) service contractors; and (2) certain public works contractors that provide engineering, architectural, or construction services (TEC §§ 22.0834, .08341). In the past, schools and contractors relied on the Clearinghouse to access and assess criminal history (Texas Government Code §411.097).
During the FBI audit, DPS was informed contractors are considered a private entity and are prohibited from accessing the national criminal history information. This prohibition effectively negates the operation of portions of TEC §22.0834 and §22.08341 related to contractors accessing and certifying for schools the national criminal history information of those employees or applicants who are required by state law to be checked.
Going forward, access to the Clearinghouse fingerprint results will only be granted for a school contractor if they were obtained under the federal National Child Protection Act (NCPA) and the contractor meets NCPA criteria. To qualify, the contractor needs to provide care or care placement services and be based in Texas.
Many service and public works contractors, including plumbers, pest control technicians, maintenance workers, and custodians wouldn’t be considered qualified contractors under the NCPA. For those school contractors who don’t qualify under the NCPA, schools instead of contractors will now need to perform the criminal background checks on those persons who are required to be checked under TEC §22.0834 and §22.08341.
Additionally, the FBI determined school districts and charter schools shouldn’t be given access to previously conducted background checks obtained pursuant to the NCPA by contractors or other agencies such as the Texas Health and Human Services Commission (HHSC). Therefore, school access to these results is being removed.
TEA provides two options for school districts and charter schools to access the DPS Clearinghouse going forward to ensure that contractors’ employee applicants and employees are fingerprinted when required by law:
- Option 1: Schools may fingerprint a contractor and/or contractor’s employees using the Local Education Entity (LEE) Fast Pass option. In this situation, schools will have access to the fingerprint results. The contractor, however, will not be able to view the results through the DPS Clearinghouse.
- Option 2: Texas-based contractors that provide care or care placement services may fingerprint their W-2 employees who have access to students. In this situation a contractor can certify that they are in compliance with TEC §22.0834. However, schools will not have access to the same fingerprint results. Please be aware that a private contractor that does not meet the NCPA criteria to access criminal history will not be granted access to the DPS Clearinghouse.
Additional information is available on the Requirements for School District Contractors webpage. This page also provides information regarding the 2019 FBI audit, including Clearinghouse subscription verification requirements for school districts and charter schools and contractor compliance certification requirements.
Karen Dooley is a Senior HR Consultant at TASB HR Services. Send Karen an email at firstname.lastname@example.org.
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Tagged: "Criminal history", Hiring, "Independent contractor"