PART 86—BACKGROUND CHECKS ON INDIVIDUALS IN DOD CHILD CARE SERVICES PROGRAMS Authority: 5 U.S.C. 2105, 10 U.S.C. chapter 47, and 42 U.S.C. 13041. Source: 80 FR 55756, Sept. 17, 2015, unless otherwise noted. § 86.1 Purpose. This part establishes policy, assigns responsibilities, and provides procedures to conduct criminal history checks on individuals involved in the provision of child care services for children under the age of 18 in DoD programs. § 86.2 Applicability. This part applies to the Office of the Secretary of Defense, the Military Departments, the Office of the Chairman of the Joint Chiefs of Staff and the Joint Staff, the Combatant Commands, the Office of the Inspector General of the Department of Defense, the Defense Agencies, the DoD Field Activities, and all other organizational entities within the DoD (referred to collectively in this part as the “DoD Components”). § 86.3 Definitions. Unless otherwise noted, these terms and their definitions are for the purposes of this part. Adjudication. Adult. Applicant. Child. Care provider. Child care services. Class. e.g., Contractor. Covered position. http://www.dtic.mil/whs/directives/corres/pdf/140025v731.pdf Criminal history background checks. Derogatory information. DoD affiliation. DoD-sanctioned programs. Duties. Employee. http://www.dtic.mil/whs/directives/corres/pdf/1400.25-V1231.pdf FAP. http://www.dtic.mil/whs/directives/corres/pdf/640001p.pdf FAP records check. Federal Bureau of Investigation (FBI) criminal history background check. FCC. http://www.dtic.mil/whs/directives/corres/pdf/606002p.pdf FCC provider. FCC adult family members. Fitness. Fitness determination. Foreign nationals. Foster care providers. Healthcare personnel. Host-government check. Interim suitability or fitness determination. Investigative elements. Installations records check (IRC). Investigative service provider (ISP). Line of Sight Supervision (LOSS). Met criteria. Position. Preliminary investigations. Providers. Regular contact with children. Reinvestigation. Respite care providers. State criminal history repository (SCHR). Suitability determination. Supervisor. e.g., Volunteer. (1) Specified volunteers. (2) Non-specified volunteers. e.g., Youth program. http://www.dtic.mil/whs/directives/corres/pdf/606004p.pdf § 86.4 Policy. It is DoD policy that: (a) Individuals who have regular contact with children under 18 years of age in DoD-sanctioned child care services programs will undergo a criminal history background check in order to protect the health, safety and well-being of children in such programs. (b) All individuals who have regular contact with children under 18 years of age in DoD-sanctioned child care services programs and who also have a current or prior DoD affiliation must also undergo an IRC. (c) DoD Component heads are delegated the authority to make suitability determinations and take subsequent actions in cases involving applicants and appointees to covered positions as defined by 5 CFR 731.101, subject to the conditions in 5 CFR 731.103. This authority may be further delegated to authorized management officials, in writing, in accordance with volume 731 of DoD Instruction 1400.25. (1) The DoD Consolidated Adjudications Facility is responsible for making favorable suitability determinations for civilian personnel in accordance with Deputy Assistant Secretary of Defense for Civilian Personnel and Policy Memorandum, “Responsibilities Under the Department of Defense Suitability and Fitness Adjudications for Civilians Employees Programs,” August 26, 2013. (2) Military members are not subject to suitability adjudication under Volume 731 of DoD Instruction 1400.25, “DoD Civilian Personnel Management System” (available at http://www.dtic.mil/whs/directives/corres/pdf/140025v731.pdf http://www.dtic.mil/whs/directives/corres/pdf/520002_2014.pdf (d) Suitability and fitness determinations for individuals subject to this part will follow the guidance of Volume 731 of DoD Instruction 1400.25 for APF employees and Subchapter 1403 of DoD Instruction 1400.25 for NAF employees. Suitability and fitness are to be applied for the child care worker population in accordance with Volume 731 of DoD Instruction 1400.25 for appropriated fund employees in covered positions as defined by 5 CFR part 731. (e) Individuals who have received a favorable interim suitability or fitness determination based on the FBI criminal history background check are permitted to work under LOSS pursuant to 42 U.S.C. 13041(b)(3). § 86.5 Responsibilities. (a) Under the authority, direction, and control of the Under Secretary of Defense for Personnel and Readiness (USD(P&R)), the Assistant Secretary of Defense for Readiness and Force Management (ASD(R&FM)): (1) Ensures the conduct of criminal history background checks complies with DoD policy and the Criminal Justice Information Services Division of the FBI's operational and security policies and procedures. (2) Monitors DoD Component compliance with this part, applicable laws, and subsequent guidance issued by the applicable ISP. (b) Under the authority, direction, and control of the ASD(R&FM), the Deputy Assistant Secretary of Defense for Civilian Personnel Policy (DASD(CPP)) oversees development of DoD Component policies and procedures for the background check initiation, completion, adjudication, and suitability or fitness determination process for civilian employees in accordance with this part. (c) Under the authority, direction, and control of the ASD(R&FM), the Deputy Assistant Secretary of Defense for Military Community and Family Policy (DASD(MC&FP)) oversees development of DoD Component policies and procedures related to the background check initiation, completion, adjudication, and fitness determination process for specified volunteers, FCC providers and adults residing in their home, and others as identified in accordance with this part. (d) Under the authority, direction, and control of the ASD(R&FM), the Deputy Assistant Secretary of Defense for Military Personnel Policy (DASD(MPP)): (1) Implements this part for military personnel in accordance with DoD Instruction 5200.02. (2) Institutes effective quality assurance and quality control systems for chaplains, support staff, specified volunteers, and contractors who provide support to religious programs and activities identified in § 86.6(a)(5)(v) and in accordance with this part. (e) Under the authority, direction, and control of the Deputy Chief Management Officer (DCMO) of the Department of Defense, the Director of Administration ensures that the adjudication of background investigations of individuals who have regular contact with children under 18 years of age in DoD-sanctioned programs considers the criteria for presumptive and automatic disqualification as specified in this part. (f) The Under Secretary of Defense for Acquisition, Technology, and Logistics (USD(AT&L)) establishes policies and procedures for the background check initiation, completion, adjudication, and fitness determination process for contractors in accordance with the requirements of this part. (g) The DoD Component heads: (1) Ensure Component compliance with the requirements of this part, applicable laws, and guidance for civilian employees. (2) Ensure compliance with suitability and fitness determination policies, requirements, and procedures for individuals in child care services in DoD programs as defined in 42 U.S.C. 13041 and DoD Instruction 1400.25. (3) Ensure compliance with policies, requirements, and procedures for LOSS of individuals with a favorable interim suitability determination. (4) Provide support and resources as required to implement this part and any Component-specific policies, requirements, and procedures, and ensure implementation. § 86.6 Procedures. (a) Requirements for criminal history background checks. (2) All employment applications completed by individuals subject to this part must comply with the requirements of 42 U.S.C. 13041(d). (3) The DoD Component will ensure that only authorized ISPs are used. (4) When permitted by the host government, foreign government checks of individuals serving on DoD installations overseas must be requested directly by the employing Military Service or agency in accordance with Volume 1231 of DoD Instruction 1400.25. As an alternative, DoD Components may request that overseas Military Service investigative elements obtain appropriate host-government checks and accept such checks if they are comparable to those required by 42 U.S.C. 13041. Where it is not possible to obtain criminal history checks comparable to those required by 42 U.S.C. 13041, foreign nationals will not be eligible for employment in child care services. (5) Individuals subject to criminal history background checks are: (i) All personnel employed or performing duties in DoD Child and Youth or other sanctioned child care services programs. (ii) Individuals providing in-home FCC. (iii) Personnel employed or performing duties in child and youth recreational and athletic programs ( e.g., (iv) Individuals employed or performing duties in a DoDEA school (whether or not directly involved with teaching), including but not limited to teachers, administrators, other professional staff, aides, bus drivers, janitors, cafeteria workers, nurses, and attendants. (v) Chaplains, chaplains' assistants, religious program specialists, and other individuals employed or performing child care services duties for children under 18 years of age on a DoD installation or as part of a military-sanctioned program. (vi) Foster and respite child care providers on a DoD installation, program, or as part of a military-sanctioned activity. (vii) Health and mental health care personnel, employed or performing child care services duties on a DoD installation, in a DoD sanctioned program, or as part of a military-sanctioned activity, including but not limited to physicians, dentists, nurse practitioners, clinical social workers, physical therapists, speech-language pathologists, clinical support staff (including residents), registered nurses, licensed practical nurses, nursing assistants, play therapists, and technicians. (viii) Individuals employed or performing child care duties in social services, residential care, rehabilitation programs, detention, and correctional services on a DoD installation, program, or as part of a military-sanctioned activity. (ix) Any other individuals reasonably expected to have regular contact with children on a DoD installation, in a DoD sanctioned program, or as part of a military-sanctioned activity, including specified volunteers and any person 18 years of age or older residing in an FCC, foster, or respite care home. Healthcare providers participating in TRICARE shall be governed by TRICARE policy. (6) The DoD Components will also determine any other classes of positions subject to criminal history background checks, taking care to ensure that all individuals who have regular contact with children when providing child care services are investigated and the requirement must pertain to the class as a whole. (7) Individuals designated in non-specified volunteer positions must always be under direct LOSS in accordance with paragraph (g) of this section. (b) Types of background checks. (1) Criminal history background checks for DoD civilian and military personnel who are investigated at the NACI or a higher level pursuant to DoD's personnel security program. (ii) These personnel will also be subject to the additional requirements of the Child Care National Agency Check and Inquiries (CNACI) and the criteria for presumptive and automatic disqualification as specified in paragraph (c) of this section. (2) Criminal history background checks for civilian employees (APF and NAF). (ii) Individuals with a prior DoD affiliation must also complete an IRC, which includes an installation law enforcement check, drug and alcohol records check, and a check of the Family Advocacy Program (FAP) records for a minimum of 2 years before the date of the application. (3) Criminal history background checks for FCC providers and contractors. (ii) Individuals with a prior DoD affiliation must also complete an IRC, including an installation law enforcement check, drug and alcohol records check, and a check of the FAP records for a minimum of 2 years before the date of the application. (4) Criminal history background checks for others. (ii) Individuals with a prior DoD affiliation must also complete an IRC to include: an installation law enforcement check, drug and alcohol records check, and a check of the FAP records for a minimum of 2 years before the date of the application. (5) Timely completion. (c) Criteria for disqualification based on results on criminal history background checks. (1) Criteria for automatic disqualification. (i) That the individual has been convicted in either a civilian or military court (to include any general, special or summary court-martial conviction) or received non-judicial punishment (under Article 15 or chapter 47 of Title 10, U.S.C., also known and referred to in this part as “the Uniform Code of Military Justice (UCMJ)”) for any of the following: (A) A sexual offense. (B) Any criminal offense involving a child victim. (C) A felony drug offense. (ii) That the individual has been held to be negligent in a civil adjudication or administrative proceeding concerning the death or serious injury to a child or dependent person entrusted to the individual's care. (2) [Reserved] (d) Suitability and fitness determinations for individuals involved with the provision of child care services. (1) Criteria for presumptive disqualification. (i) A FAP record indicating that the individual met criteria for child abuse or neglect or civil adjudication that the individual committed child abuse or neglect. (ii) Evidence of an act or acts by the individual that tend to indicate poor judgment, unreliability, or untrustworthiness in providing child care services. (iii) Evidence or documentation of the individual's past or present dependency on or addiction to any controlled or psychoactive substances, narcotics, cannabis, or other dangerous drug without evidence of rehabilitation. (iv) A conviction, including any general, special, or summary court-martial conviction, or non-judicial punishment under Article 15 of the UCMJ for: (A) A crime of violence committed against an adult. (B) Illegal or improper use, possession, or addiction to any controlled or psychoactive substances, narcotics, cannabis, or other dangerous drug. (v) A civil adjudication that terminated the individual's parental rights to his or her child, except in cases where the birth parent places his or her child for adoption. (2) Evaluation of presumptively disqualifying information. (3) Criteria for disqualification under LOSS. (4) Disputes and appeals. (e) Reinvestigation. (2) All FCC providers and adults residing in an FCC home must undergo an annual reinvestigation utilizing the Special Agreement Check (SAC) for childcare providers. The SAC reinvestigation consists of an update to the initial investigation as outlined in paragraph (b) of this section. (3) If the reinvestigation results in an unfavorable determination, the DoD Components will take action to protect children by reassigning or removing the individual from employment, contract, or volunteer status. (4) If derogatory information surfaces within the 5 years before the reinvestigation, the DoD Component will take action to protect children by reassigning or suspending from having contact with children, any individual, contractor or volunteer until the case is resolved. (f) Self-reporting. (2) The DoD Components will establish procedures for: (i) Informing individuals of the requirement to immediately report any incident or conviction that may invalidate their prior background check and make them ineligible to work or have contact with children. (ii) Responding to and evaluating reports made by such individuals, and taking appropriate action until the case has been resolved or closed. (g) Eligibility to perform duties under LOSS. (1) No presumption of right. (2) Preliminary investigations required. (i) An IRC, including installation law enforcement records check, drug and alcohol records, and FAP records check for a minimum of 2 years before the date of the application if the individual has a preexisting DoD affiliation. (ii) Initial results from the advanced FBI fingerprint criminal history background check (not the full check). (3) Exception for non-specified volunteers. (4) Supervisor requirements. (i) Has undergone and successfully completed the required background check. (ii) Has complied, as required, with the periodic reinvestigation requirement for a recurring criminal history background check. (iii) Has not previously exhibited reckless disregard for an obligation to supervise an employee, contractor, or volunteer. (5) Video surveillance. (6) Conspicuous identification of individuals subject to LOSS. (7) Permissible performance of duties without supervision. (i) Interaction with a child occurs in the presence of the child's parent or guardian; (ii) Interaction with children is in a medical facility, subject to supervisory policies of the facility, and in the presence of a mandated reporter of child abuse; or (iii) Interaction is necessary to prevent death or serious harm to the child, and supervision is impractical or unfeasible ( e.g.,