II

106TH CONGRESS

2D SESSION S. 3220

To amend sections 3 and 5 of the National Child Protection Act of 1993,

relating to national criminal history background checks of providers of

care to children, elderly persons, and persons with disabilities.

IN THE SENATE OF THE UNITED STATES

OCTOBER 19 (legislative day, SEPTEMBER 22), 2000

Mr. DEWINE introduced the following bill; which was read twice and referred

to the Committee on the Judiciary

A BILL

To amend sections 3 and 5 of the National Child Protection

Act of 1993, relating to national criminal history background checks of providers of care to children, elderly

persons, and persons with disabilities.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘National Child Protec5 tion Amendments Act of 2000’’.

6 SEC. 2. RELATIONSHIP TO STATE STATUTES.

7 The amendments made by this Act shall not affect

8 the validity of any State statute dealing with criminal his-
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1 tory background checks of care providers enacted in com2 pliance with Public Law 92–544 before, on, or after the

3 date of enactment of this Act.

4 SEC. 3. FACILITATION OF BACKGROUND CHECKS.

5 (a) IN GENERAL.—Section 3 of the National Child

6 Protection Act of 1993 (42 U.S.C. 5119a) is amended to

7 read as follows:

8 ‘‘SEC. 3. FACILITATION OF BACKGROUND CHECKS.

9 ‘‘(a) IN GENERAL.—

10 ‘‘(1) BACKGROUND CHECKS.—A qualified entity

11 designated by a State may contact an authorized

12 agency of the State to obtain a fingerprint-based na13 tional criminal history background check (referred to

14 in this section as a ‘background check’) of a provider

15 who provides care to children, the elderly, or individ16 uals with disabilities (referred to in this section as

17 a ‘provider’).

18 ‘‘(2) PROCEDURES.—

19 ‘‘(A) SUBMISSION.—A request for back20 ground check pursuant to this section shall be

21 submitted through a State criminal history

22 record repository.

23 ‘‘(B) DUTIES OF REPOSITORY.—After re24 ceipt of a request under subparagraph (A), the

25 State criminal history record repository shall—
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1 ‘‘(i) conduct a search of the State

2 criminal history record system and, if nec3 essary, forward the request, together with

4 the fingerprints of the provider, to the

5 Federal Bureau of Investigation; and

6 ‘‘(ii) make a reasonable effort to re7 spond to the qualified entity within 15

8 business days after the date on which the

9 request is submitted.

10 ‘‘(3) NATIONAL CRIME PREVENTION AND PRI11 VACY COMPACT.—Each background check pursuant

12 to this section shall be conducted pursuant to the

13 National Crime Prevention and Privacy Compact.

14 ‘‘(b) GUIDELINES.—

15 ‘‘(1) IN GENERAL.—In order to conduct back16 ground checks pursuant to this section, a State

17 shall—

18 ‘‘(A) establish or designate 1 or more au19 thorized agencies to perform the duties required

20 by this section, including the designation of

21 qualified entities; and

22 ‘‘(B) establish the procedures described in

23 paragraph (2).

24 ‘‘(2) PROCEDURES.—The procedures described

25 in this paragraph are procedures that require—
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1 ‘‘(A) a qualified entity that requests a

2 background check pursuant to this section to

3 forward to the authorized agency the finger4 prints of the provider and to obtain a statement

5 completed and signed by the provider that—

6 ‘‘(i) sets out the name, address, and

7 date of birth of the provider appearing on

8 a valid identification document (as defined

9 in section 1028 of title 18, United States

10 Code);

11 ‘‘(ii) states whether the provider has a

12 criminal history record and, if so, sets out

13 the particulars of such record;

14 ‘‘(iii) notifies the provider that the

15 qualified entity may request a background

16 check and that the signature of the pro17 vider to the statement constitutes an ac18 knowledgement that such a check may be

19 conducted and explains the uses and dis20 closures that may be made of the results of

21 the background check;

22 ‘‘(iv) notifies the provider that pend23 ing the completion of the background

24 check the provider may be denied unsuper25 vised access to children, the elderly, or dis-
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1 abled persons with respect to which the

2 provider intends to provide care; and

3 ‘‘(v) notifies the provider of the rights

4 of the provider under subparagraph (B);

5 ‘‘(B) that each provider who is the subject

6 of a background check pursuant to this section

7 be provided with an opportunity to contact the

8 authorized agency and initiate a process to—

9 ‘‘(i) obtain a copy of the criminal his10 tory record; and

11 ‘‘(ii) file a challenge with the author12 ized agency, but only as to the accuracy

13 and completeness of the criminal history

14 record information in the report, and ob15 tain a prompt determination of the chal16 lenge before a final adverse fitness deter17 mination is made on the basis of the crimi18 nal history record information in the re19 port;

20 ‘‘(C) an authorized agency that receives a

21 criminal history record report that lacks dis22 position information to conduct research in

23 available State and local recordkeeping systems

24 to obtain complete information, to the extent
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1 possible considering available personnel and re2 sources;

3 ‘‘(D) the authorized agency to either—

4 ‘‘(i) make a determination regarding

5 whether the criminal history record infor6 mation received in response to the back7 ground check indicates that the provider

8 has a criminal history record that renders

9 the provider unfit to provide care to chil10 dren, the elderly, or individuals with dis11 abilities and convey that determination to

12 the qualified entity; or

13 ‘‘(ii) provide some or all of such crimi14 nal history record information to the quali15 fied entity for use by the qualified entity in

16 making a fitness determination concerning

17 the provider; and

18 ‘‘(E) a qualified entity that receives crimi19 nal history record information concerning a pro20 vider in response to a background check pursu21 ant to this section to—

22 ‘‘(i) adhere to a standard of reason23 able care concerning the security and con24 fidentiality of the information and the pri25 vacy rights of the provider; and
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1 ‘‘(ii) require the qualified entity to

2 make a copy of the criminal history record

3 available, upon request, to the provider,

4 and prohibit such entity from retaining

5 criminal history record information for any

6 period longer than necessary for a final fit7 ness determination.

8 ‘‘(3) RETENTION OF INFORMATION.—The state9 ment required under paragraph (2)(A)—

10 ‘‘(A) may be forwarded by the qualified en11 tity to the authorized agency or retained by the

12 qualified entity; and

13 ‘‘(B) shall be retained by such agency or

14 entity, as appropriate, for not less than 1 year.

15 ‘‘(c) GUIDANCE BY THE ATTORNEY GENERAL.—The

16 Attorney General shall—

17 ‘‘(1) to the maximum extent practicable, en18 courage the use of the best technology available in

19 conducting background checks pursuant to this sec20 tion; and

21 ‘‘(2) provide guidance to the States concerning

22 the voluntary adoption by the States of standards to

23 guide authorized agencies and qualified entities in

24 making fitness determinations concerning providers

25 based upon criminal history record information.
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1 ‘‘(d) PENALTY.—Any officer, employee, or authorized

2 representative of a qualified entity who knowingly and

3 willfully—

4 ‘‘(1) requests or obtains any criminal history

5 record information pursuant to this section under

6 false pretenses; or

7 ‘‘(2) uses criminal history record information

8 for a purpose not authorized by this section,

9 shall be guilty of a misdemeanor and fined not more than

10 $5,000.

11 ‘‘(e) LIMITATIONS ON LIABILITY.—

12 ‘‘(1) LIABILITY OF QUALIFIED ENTITIES.—

13 ‘‘(A) FAILURE TO REQUEST BACKGROUND

14 CHECK.—A qualified entity shall not be liable in

15 an action for damages solely for the failure of

16 such entity to request a background check on a

17 provider.

18 ‘‘(B) WILLFUL VIOLATIONS.—A qualified

19 entity shall not be liable in an action for dam20 ages for violating any provision of this section,

21 unless such violation is knowing and willful.

22 ‘‘(C) REASONABLE CARE STANDARD.—A

23 qualified entity that exercises reasonable care

24 for the security, confidentiality, and privacy of

25 criminal history record information received in
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1 response to a background check pursuant to

2 this section shall not be liable in an action for

3 damages.

4 ‘‘(2) LIABILITY OF GOVERNMENTAL ENTI5 TIES.—A State or political subdivision thereof, or

6 any agency, officer, or employee thereof, shall not be

7 liable in an action for damages for the failure of a

8 qualified entity (other than itself) to take action ad9 verse with respect to a provider who was the subject

10 of a background check.

11 ‘‘(3) RELIANCE ON INFORMATION.—An author12 ized agency or a qualified entity that reasonably re13 lies on criminal history record information received

14 in response to a background check pursuant to this

15 section shall not be liable in an action for damages

16 based upon the inaccuracy or incompleteness of the

17 information.

18 ‘‘(f) FEES.—

19 ‘‘(1) LIMITATION.—In the case of a background

20 check pursuant to a State requirement adopted after

21 December 20, 1993, conducted with fingerprints on

22 a person who volunteers with a qualified entity, the

23 fees collected by authorized State agencies and the

24 Federal Bureau of Investigation may not exceed

25 $18, respectively, or the actual cost, whichever is
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1 less, of the background check conducted with finger2 prints.

3 ‘‘(2) STATE FEE SYSTEMS.—The States shall

4 establish fee systems that ensure that fees to non5 profit entities for background checks do not discour6 age volunteers from participating in child care pro7 grams.

8 ‘‘(3) AUTHORITY OF FEDERAL BUREAU OF IN9 VESTIGATION.—This subsection shall not affect the

10 authority of the Federal Bureau of Investigation or

11 the States to collect fees for conducting background

12 checks of persons who are employed as or apply for

13 positions as paid care providers.’’.

14 (b) AUTHORIZATION OF APPROPRIATIONS; CON15 FORMING AMENDMENTS.—Section 4 of the National Child

16 Protection Act of 1993 (42 U.S.C. 5119b) is amended—

17 (1) by redesignating subsections (b) and (c) as

18 subsections (a) and (b), respectively; and

19 (2) in subsection (a), as redesignated—

20 (A) in paragraph (1)—

21 (i) in each of subparagraphs (C) and

22 (D), by striking ‘‘national criminal history

23 background check system’’ and inserting

24 ‘‘criminal history record repository’’; and
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1 (ii) by striking subparagraph (E) and

2 inserting the following:

3 ‘‘(E) to assist the State in offsetting the

4 costs to qualified entities of background checks

5 under section 3 on volunteer providers.’’; and

6 (B) by striking paragraph (2) and insert7 ing the following:

8 ‘‘(2) AUTHORIZATION OF APPROPRIATIONS.—

9 There are authorized to be appropriated for grants

10 under paragraph (1)—

11 ‘‘(A) $80,000,000 for fiscal year 2001; and

12 ‘‘(B) such sums as may be necessary for

13 each of fiscal years 2002 through 2005.’’.

14 SEC. 4. DEFINITIONS.

15 Section 5 of the National Child Protection Act of

16 1993 (42 U.S.C. 5119c) is amended—

17 (1) by striking paragraph (8);

18 (2) by redesignating paragraphs (6) and (7) as

19 paragraphs (7) and (8), respectively;

20 (3) by inserting after paragraph (5) the fol21 lowing:

22 ‘‘(6) the term ‘criminal history record reposi23 tory’ means the State agency designated by the Gov24 ernor or other executive official of a State, or by the

25 legislature of a State, to perform centralized record-
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1 keeping functions for criminal history records and

2 services in the State;’’; and

3 (4) in paragraph (9)—

4 (A) in subparagraph (A)(iii)—

5 (i) by inserting ‘‘or to an elderly per6 son or person with a disability’’ after ‘‘to

7 a child’’; and

8 (ii) by striking ‘‘child care’’ and in9 serting ‘‘care’’; and

10 (B) in subparagraph (B)(iii)—

11 (i) by inserting ‘‘or to an elderly per12 son or person with a disability’’ after ‘‘to

13 a child’’; and

14 (ii) by striking ‘‘child care’’ and in15 serting ‘‘care’’.

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