Title 42
SECTION 136.414
136.414 How does the IHS determine eligibility for placement or retention of individuals in positions involving regular contact with Indian children
§ 136.414 How does the IHS determine eligibility for placement or retention of individuals in positions involving regular contact with Indian children?(a) Adjudication is the process IHS uses to determine eligibility for placement or retention of individuals in positions involving regular contact with Indian children. The adjudication process protects the interests of the employer and the right of applicants and employees. Adjudication requires uniform evaluation to ensure fair and consistent judgment.
(b) Each case is judged on its own merits. All available information, both favorable and unfavorable, should be considered and assessed in terms of accuracy, completeness, relevance, seriousness, overall significance, and how similar cases have been handled in the past.
(c) The adjudicating official who conducts the adjudication must first have been the subject of a favorable background investigation.
(d) Each adjudicating official must be thoroughly familiar with all laws, regulations, and criteria involved in making a determination for eligibility.
(e) The adjudicating official must review the background investigation to determine the character, reputation, and trustworthiness of the individual. At a minimum, the background investigation must:
(1) Review each security investigation form and employment application and compare the information provided.
(2) Review the results of written record searches requested from local law enforcement agencies, former employers, former supervisors, employment references, and schools.
(3) Review the results of the fingerprint charts maintained by the FBI or other law enforcement information maintained by other agencies.
(4) Review any other information obtained through a background investigation, including the results of searches by State human services agencies, the OPM National Agency Check and Inquiries, the OPM Security/Suitability Investigations Index, and the Defense Clearance and Investigations Index.
(5) Determine whether the individual has 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.
(f) After an opportunity has been afforded the individual to respond, pursuant to § 136.415, and it is adjudicated that the individual has been found guilty of or entered a plea of nolo contendere or guilty to an enumerated offense under paragraph (e)(5) of this section, that individual shall not be placed or retained in a position involving regular contact with or control over Indian children.
(g) For individuals who have been determined to be ineligible for employment in positions having regular contact with or control over Indian children, the IHS may use Federal adjudicative standards to certify that an individual is suitable for employment in a position, if available, that does not involve regular contact with or control over Indian children. The adjudicating official must determine that the individual's prior conduct will not interfere with the performance of duties and will not create a potential risk to the safety and well-being of any Indian children after consideration of the following factors:
(1) The nature and seriousness of the conduct in question.
(2) The recency and circumstances surrounding the conduct in question.
(3) The age of the individual at the time of the incident.
(4) Societal conditions that may have contributed to the nature of the conduct.
(5) The probability that the individual will continue the type of behavior in question.
(6) The individual's commitment to rehabilitation and a change in the behavior in question.
(7) The degree of public trust and the possibility the public would be placed at risk if the individual is appointed to the position.