By Grant Minix
Occupational licensure compacts are legislatively enacted agreements between states to facilitate multistate practice and strengthen public protection for licensed professions. Since 2016, more than 300 pieces of compact legislation have been adopted by states and territories from the 17 available licensure compacts.
As compacts begin and continue operations, states have encountered intermittent difficulties through the FBI when conducting background checks for an authorization to practice from an interstate compact. To alleviate this barrier for states, the bipartisan SHARE Act was introduced by Kansas Rep. Tracey Mann, directing the FBI to provide criminal record history information to state agencies conducting a background check for the purposes of an interstate compact. The bill is a technical amendment to existing background check law.
As of January 2024, most active interstate licensure compact commissions require[i] an FBI criminal background check verification either at initial licensure or upon a licensee’s decision to apply for authorization to practice. It is expected that within five years the number of active compacts will at least double, due in large part to a cooperative agreement to develop interstate compacts between the Department of Defense and the CSG National Center for Interstate Compacts. Without passage of the clarifying language in the SHARE Act, states run the risk of being unable to fully participate in compacts due to a lack of clarity surrounding federal criminal background check verification for compact applicants.
Numerous participating states have experienced issues, with licensing agencies failing to receive criminal background verification of a licensee’s eligibility. These issues stem from inconsistent interpretations of 34 U.S.C. 41101, which outlines requirements for FBI criminal background checks. Communication to compact member states suggests the FBI is concerned with criminal history information being shared with the commissions. However, compact commissions only receive verification of an applicant’s eligibility for a compact authorization to practice and do not receive any details regarding a background check, negating the FBI’s concerns.
Current federal law allows for criminal history information to be held solely by the appropriate licensing authority when an FBI background check is performed for an occupational license. Compact language and commission rules prohibit any criminal history information held by state licensing agencies from being shared with the licensure commission. The sharing of a background check verification without criminal history record information is similar to the type of verification an employer would receive from an applicant for employment.
With passage of the SHARE Act, there will be clear direction for the FBI to perform criminal background check information for individuals applying for an authorization to practice through an interstate compact. Language in the bill also reinforces the protection of detailed criminal history information by explicitly prohibiting the sharing of that information.
As of January 2024, the SHARE Act had 22 cosponsors from both sides of the aisle. The bill was introduced on March 1, 2023, and is currently referred to the House Committee on Education and Workforce as well as the House Judiciary Committee. A Senate version of the bill is expected to be filed.
NOTE
[i] Per Article 3.A.5 of the Cosmetology Compact, a compact member state must implement procedures for considering one or more of the following categories of information from applicants for licensure: criminal history, disciplinary history or background check.