The Art of Considering Criminal History as an Indicator of Moral Character

Considering and handling criminal background requires multiple considerations, from decision trees to detailed procedures. This article is based on a presentation by Tina Baum and Fred Olmstead at the 2019 FSBPT Annual Meeting.

Approximately one in three adults have a criminal record. The FBI considers anyone arrested on a felony charge to have a criminal record, even if the arrest did not lead to a conviction. Asking applicants to self-report regarding criminal histories on initial applications is ineffective. For example, in Kansas, when the Board of Nursing started their criminal background checks in 2009, they had found that 15 percent of their applicants had a criminal history record—however, 29 percent of them did not report it.

In recent years, there has been a trend toward occupational licensing reform. Some have seen licensure requirements as barriers to employment. The Department of Justice indicates that if you have a criminal history record, you have a 50 percent decreased likelihood of getting a job offer. In 2015, the White House released a report with recommendations on how to minimize barriers to licensing for ex-offenders. These initiatives for reform were broad-based and did not look at the level of education or skill among occupations. In 2019, thirteen states introduced legislation, totaling twenty-three bills, to reform how these criminal background checks are used in occupational licensing decisions.

There are a few different focus areas when it comes to reform:

1. Ensuring the criminal record must be directly related to the profession in order to deny a license
   • Moving away from disqualifying lists or automatic bans
   
   
2. Allowing for a petition to the board to determine if a criminal record disqualifies an individual from licensure
   • Including before enrolling in any required training
   
   
3. Preventing the use of vague moral character standards to deny licenses for ex-offenders
   • Moral turpitude, “be of good moral character”
   
   
4. Making certificates of rehabilitation available through the court system and administrative agencies

Regulators conduct criminal background checks to protect the public—it helps us be proactive instead of reactive. Physical therapists work with vulnerable populations, so regulators need to thoroughly vet an applicant prior to approving them for a license. Even if a license isn’t denied, knowing the criminal history of an applicant could provide an opportunity for education and remediation before a practitioner receives the license. Noting the importance of having a full picture of the applicant, the Physical Therapy Compact mandates all member states collect an FBI criminal history record information as a requirement for licensure.   

Nevada as a Case Study

It’s important to keep in mind that while it’s helpful to see how this all works in one state, such as Nevada, what works for one state doesn’t work for all states.

Before any state board can run background checks and collect finger prints, they need to obtain both the statutory and legal authority. In order to obtain statutory authority, the state code must comply with the requirements of Federal statute P.L. 92-544. The FBI recommends jurisdictions consult state ID bureaus for recommended language.

Example Language:

Conduct criminal history records checks as determined by the board through the state criminal bureau of investigation and Federal Bureau of Investigation for purposes of issuing licenses; provided, however, that reports from such record checks shall not be shared with entities outside of this state

Additionally, boards need to obtain legal authority to get finger prints. In Nevada, there are a few statutes related to this:

NRS 632.344  Applicant for license or certificate to submit set of fingerprints to Board.  

An applicant for a license or certificate shall submit to the Board a complete set of fingerprints and written permission authorizing the Board to forward those fingerprints to the Central Repository for Nevada Records of Criminal History for submission to the Federal Bureau of Investigation for its report.

There also must be a legal nexus between the criminal history record information and the qualifications for licensure.

NRS 632.140  Qualifications and fee for applicants for license.  

1.  Every applicant for a license to practice as a professional nurse in the State of Nevada must submit to the Board written evidence under oath that the applicant:

     (a) Is of good moral character. (1943)

NRS 632.347  Grounds for denial, revocation or suspension of license or certificate or other disciplinary action.

1.  The Board may deny, revoke or suspend any license or certificate applied for or issued  pursuant to this chapter, or take other disciplinary action against a licensee or holder of a certificate, upon determining that the licensee or certificate holder:

  ...

     (b) Is guilty of any offense:

       (1) Involving moral turpitude; or

       (2) Related to the qualifications, functions or duties of a licensee or holder of a certificate

If you have this kind of statute in your state and you're wondering what types of criminal histories relate to the practice of physical therapy, look at your long-term care statues and your facility law. What limitations do those statutes have? Who isn’t allowed to work in those settings?

Once you have a law that allows you to receive criminal histories, and a law that allows you to use those criminal histories for purposes of licensure, then you will need to draft a procedure or a policy to determine how everything is handled. FSBPT is working on a resources to help with that process.

Criminal Background Checks Resource

FSBPT is creating a Criminal Background Checks Resource, which will be released in early 2020.. The resource is member-driven and based on feedback at the Leadership Issues Forum and previous Annual Meetings. The goal of the resource is to provide foundational concepts and a basic understanding for obtaining an applicant’s criminal history record information for licensure.

The resource will provide information that will help you develop policies and procedures and prepare you for possible audits. Audits can come at either the state or federal level. Additionally, applicants may challenge the board’s decision and you have to have an appeals process for that. There are a few other considerations and policy suggestions provided in the resource.  

Application

As a first step, you will want to revise your board licensure application. You should consult with your attorney to draft some language for inquiry on criminal backgrounds. A lot of applicants think that their records were sealed when they actually weren’t. Therefore, it’s a good idea to add language to the effect of "Please note that even though someone has told you that your records have been sealed or expunged, they may not be, so please include all relevant information.”

Handling

The board will need a step-by-step process and the appropriate handling of that criminal history record and information. From the time that it arrives on your desk until it gets destroyed, you need to track what's happening with that criminal history record information. Therefore, you need to outline in your policy and procedures its use, its dissemination, its storage, its destruction, and any penalties from misuse. The FSBPT resource has suggestions on these procedures as well.

Answer Guidance

The National Council of State Boards of Nursing (NCSBN) developed Criminal Background Check Guidelines. The goal was to provide boards with an evidenced-based, consistent, and fair approach to the interpretation of criminal background check information that protects the board and, of course, the public. Having a system like this in writing can help get everyone organized.

Their recommendations basically consist of a five-step process:

1. The Application
   • Biometric testing, personal statement regarding offenses
   
   
2. Minor Offense List
   • A list of misdemeanor offenses not applicable or relevant to safe nursing practice

3. Initial Screening

• Does the criminal background check reveal a positive criminal history? What’s the decision tree to decide whether or not to issue a license? Is advance screening needed?

4. Advanced Screening

• Use of a special committee/task force designated by the board
• Information gathering—does the applicant demonstrates criminal thinking that would pose a threat to public safety if licensed as a nurse?
• Incongruent explanations, crimes of sexual nature, history of substance abuse, etc.

5. Risk Assessment

• The purpose of this is to systematically and objectively assess the risk to public safety and use data to make an informed and fair decision about licensure.
• It’s often a good idea to involve other trained professional to assist in the risk assessment.

Additional Factors to Consider

While the board is reviewing an applicant, there are a few other things they should consider:

• Does the applicant’s criminal history match what they self-reported?
• Is the arrest or conviction related to the licensee’s ability to safely practice physical therapy?
  1. Would it make sense to give them a license that restricts what types of environments they can practice in?
  
  
• Seriousness of the crimes
  1. Keep in mind that crimes vary by state.
  2. States also vary in their definitions of “minors.”
  
  
• Time, nature, and number of convictions
• Circumstances and relationships between convictions
• The extent to which the applicant has complied with any terms or conditions of the probation imposed
• Evidence of successful rehabilitation

While there are many factors to consider when handling criminal background checks, these tips can help. Additionally, FSBPT will soon release a detailed resources for members to help guide procedures and decisions.