HR 5606
110th CONGRESS
2d Session
H. R. 5606
To amend the National Child Protection Act of 1993 to establish a
permanent background check system.
IN THE HOUSE OF REPRESENTATIVES
March 13, 2008
Mr. SCHIFF (for himself and Mr. ROGERS of Michigan) introduced the following
bill; which was referred to the Committee on the Judiciary
A BILL
To amend the National Child Protection Act of 1993 to establish a
permanent background check system.
Be it enacted by the Senate and House of Representatives of the United
States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the `Child Protection Improvements Act of 2008'.
SEC. 2. FINDINGS.
Congress finds the following:
(1) In 2006, 61,200,000 adults (a total of 26.7 percent of the population)
contributed a total of 8,100,000,000 hours of volunteer service. Of those
who volunteer, 27 percent dedicate their service to education or youth programs,
or a total of 16,500,000 adults.
(2) Assuming recent incarceration rates remain unchanged, an estimated 6.6
percent of individuals in the United States will serve time in prison for
a crime during their lifetime. The Integrated Automated Fingerprint Identification
System of the Federal Bureau of Investigation maintains fingerprints and
criminal histories on more than 47,000,000 individuals, many of whom have
been arrested or convicted multiple times.
(3) A study released in 2002, found that, of individuals released from prison
in 15 States in 1994, an estimated 67.5 percent were rearrested for a felony
or serious misdemeanor within 3 years. Three-quarters of those new arrests
resulted in convictions or a new prison sentence.
(4) Given the large number of individuals with criminal records and the
vulnerability of the population they work with, human service organizations
that work with children need an effective and reliable means of obtaining
a complete criminal history in order to determine the suitability of a potential
volunteer or employee.
(5) The large majority of Americans (88 percent) favor granting youth-serving
organizations access to conviction records for screening volunteers and
59 percent favored allowing youth-serving organizations to consider arrest
records when screening volunteers. This was the only use for which a majority
of those surveyed favored granting access to arrest records.
(6) Congress has previously attempted to ensure that States make Federal
Bureau of Investigation criminal history record checks available to organizations
seeking to screen employees and volunteers who work with children, the elderly,
and individuals with disabilities, through the National Child Protection
Act of 1993 (42 U.S.C. 5119 et seq.) and the Volunteers for Children Act
(Public Law 105-251; 112 Stat. 1885). However, according to a June 2006
report from the Attorney General, these laws `did not have the intended
impact of broadening the availability of NCPA checks.'. A 2007 survey conducted
by MENTOR/National Mentoring Partnership found that only 18 States allowed
youth mentoring organizations to access nationwide Federal Bureau of Investigation
background searches.
(7) Even when accessible, the cost of a criminal background check can be
prohibitively expensive, ranging from $5 to $75 for a State fingerprint
check, plus the Federal Bureau of Investigation fee, which ranges between
$16 to $24, for a total of between $21 and $99 for each volunteer or employee.
(8) Delays in processing such checks can also limit their utility. While
the Federal Bureau of Investigation processes all civil fingerprint requests
in less than 24 hours, State response times vary widely, and can take as
long as 42 days.
(9) The Child Safety Pilot Program under section 108 of the PROTECT Act
(42 U.S.C. 5119a note) revealed the importance of performing fingerprint-based
Federal Bureau of Investigation criminal history record checks. Of 29,000
background checks performed through the pilot as of March 2007, 6.4 percent
of volunteers were found to have a criminal record of concern, including
very serious offenses such as sexual abuse of minors, assault, child cruelty,
murder, and serious drug offenses.
(10) In an analysis performed on the volunteers screened in the first 18
months of the Child Safety Pilot Program, it was found that over 25 percent
of the individuals with criminal records had committed an offense in a State
other than the State in which they were applying to volunteer, meaning that
a State-only search would not have found relevant criminal results. In addition,
even though volunteers knew a background check was being performed, over
50 percent of the individuals found to have a criminal record falsely indicated
on their application form that they did not have a criminal record.
(11) The Child Safety Pilot Program also demonstrates that timely and affordable
background checks are possible, as background checks under that program
are completed within 3 to 5 business days at a cost of $18.
SEC. 3. BACKGROUND CHECKS.
The National Child Protection Act of 1993 (42 U.S.C. 5119 et seq.) is amended--
(1) by redesignating section 5 as section 6; and
(2) by inserting after section 4 the following:
`SEC. 5. PROGRAM FOR NATIONAL CRIMINAL HISTORY BACKGROUND CHECKS FOR CHILD-SERVING
ORGANIZATIONS.
`(a) Definitions- In this section--
`(1) the term `applicant processing center' means the applicant processing
center established by the Attorney General under subsection (b)(1);
`(2) the term `child' means an individual who is less than 18 years of age;
`(3) the term `covered entity' means a business or organization, whether
public, private, for-profit, nonprofit, or voluntary that provides care,
care placement, supervision, treatment, education, training, instruction,
or recreation to children, including a business or organization that licenses,
certifies, or coordinates individuals or organizations to provide care,
care placement, supervision, treatment, education, training, instruction
or recreation to children;
`(4) the term `covered individual' means an individual--
`(A) who has, seeks to have, or may have unsupervised access to a child
served by a covered entity; and
`(i) is employed by or volunteers with, or seeks to be employed by or
volunteer with, a covered entity; or
`(ii) owns or operates, or seeks to own or operate, a covered entity;
`(5) the term `fitness determination program' means the fitness determination
program established under subsection (b)(2);
`(6) the term `identification document' has the meaning given that term
in section 1028 of title 18, United States Code;
`(7) the term `participating entity' means a covered entity that is approved
under subsection (f) to receive nationwide background checks from the applicant
processing center and to participate in the fitness determination program;
`(8) the term `State' means a State of the United States, the District of
Columbia, the Commonwealth of Puerto Rico, American Samoa, the Virgin Islands,
Guam, the Commonwealth of the Northern Mariana Islands, the Federated States
of Micronesia, the Republic of the Marshall Islands, and the Republic of
Palau; and
`(9) the term `State authorized agency' means a division or office of a
State designated by that State to report, receive, or disseminate criminal
history information.
`(b) Establishment of Program- Not later than 90 days after the date of enactment
of the Child Protection Improvements Act of 2008, the Attorney General shall
`(1) establish within the Federal Government or through an agreement with
a nonprofit entity an applicant processing center; and
`(2) enter into an agreement with the National Center for Missing and Exploited
Children, under which the National Center for Missing and Exploited Children
shall establish a fitness determination program.
`(c) Applicant Processing Center-
`(1) PURPOSE- The purpose of the applicant processing center is to streamline
the process of obtaining nationwide background checks, provide effective
customer service, and facilitate widespread access to nationwide background
checks by participating entities.
`(2) DUTIES- The applicant processing center shall--
`(A) provide information to covered entities on the requirements to become
a participating entity;
`(B) provide participating entities with access to nationwide background
checks on covered individuals;
`(C) receive paper and electronic requests for nationwide background checks
on covered individuals from participating entities;
`(D) serve as a national resource center to provide guidance and assistance
to participating entities on how to submit requests for nationwide background
checks, how to interpret criminal history records, how to obtain State
criminal background checks, and other related information;
`(E) to the extent practicable, negotiate an agreement with each State
authorized agency under which--
`(i) that State authorized agency shall conduct a State criminal background
check within the time periods specified in subsection (e) in response
to a request from the applicant processing center and provide criminal
history records to the National Center for Missing and Exploited Children;
and
`(ii) a participating entity may elect to obtain a State background
check, in addition to a nationwide background check, through 1 unified
request to the applicant processing center;
`(F) convert all paper fingerprint cards into an electronic form and securely
transmit all fingerprints electronically to the national criminal history
background check system and, if appropriate, the State authorized agencies;
`(G) collect a fee to conduct the nationwide background check, and, if
appropriate, a State criminal background check, and remit fees to the
National Center for Missing and Exploited Children, the Federal Bureau
of Investigation, and the State authorized agencies, as appropriate;
`(H) convey the results of the fitness determination to the participating
entity that submitted the request for a nationwide background check; and
`(I) coordinate with the Federal Bureau of Investigation, participating
State authorized agencies, and the National Center for Missing and Exploited
Children to ensure that background check requests are being completed
within the time periods specified in subsection (e).
`(3) REQUESTS- A request for a nationwide background check by a participating
entity shall include--
`(A) the fingerprints of the covered individual, in paper or electronic
form;
`(B) a photocopy of a valid identification document; and
`(C) a statement completed and signed by the covered individual that--
`(i) sets out the covered individual's name, address, and date of birth,
as those items of information appear on a valid identification document;
`(ii) states whether the covered individual has a criminal record, and,
if so, provides the particulars of such criminal record;
`(iii) notifies the covered individual that the Attorney General and,
if appropriate, a State authorized agency may perform a criminal history
background check and that the signature of the covered individual on
the statement constitutes an acknowledgment that such a check may be
conducted;
`(iv) notifies the covered individual that prior to and after the completion
of the background check, the participating entity may choose to deny
the covered individual access to children; and
`(v) notifies the covered individual of the right of the covered individual
to correct an erroneous record of the Attorney General and, if appropriate,
the State authorized agency.
`(A) IN GENERAL- The applicant processing center may collect a fee to
defray the costs of carrying out its duties and the duties of the National
Center for Missing and Exploited Children under this section--
`(i) for a nationwide background check and fitness determination, in
an amount not to exceed the lesser of--
`(I) the actual cost to the applicant processing center and the National
Center for Missing and Exploited Children of conducting a nationwide
background check and fitness determination under this section; or
`(II)(aa) $25 for a participating entity that is a nonprofit entity;
or
`(bb) $40 for any other participating entity; and
`(ii) for a State criminal background check described in paragraph (2)(E),
in the amount specified in the agreement with the applicable State authorized
agency, not to exceed $18.
`(B) REDUCED FEES- In determining the amount of the fees to be collected
under subparagraph (A), the applicant processing center--
`(i) shall, to the extent possible, discount such fees for participating
entities that are nonprofit entities; and
`(ii) may use fees paid by participating entities that are not nonprofit
entities to reduce the fees to be paid by participating entities that
are nonprofit entities.
`(C) PROHIBITION ON FEES-
`(i) IN GENERAL- A participating entity may not charge another entity
or individual a surcharge to access a background check conducted under
this section.
`(ii) VIOLATION- The Attorney General shall bar any participating entity
that the Attorney General determines violated clause (i) from submitting
background checks under this section.
`(d) Fitness Determination Program-
`(1) PURPOSE- The purpose of the fitness determination program is to provide
participating entities with reliable and accurate information regarding
whether a covered individual has been convicted of, or is under pending
arrest or indictment for, a crime that bears upon the fitness of the covered
individual to have responsibility for the safety and well-being of the children
in their care.
`(2) REQUIREMENTS OF FITNESS DETERMINATION PROGRAM- As part of operating
the fitness determination program, the National Center for Missing and Exploited
Children shall--
`(A) establish procedures to securely receive criminal background records
from the Federal Bureau of Investigation and, if appropriate, State authorized
agencies;
`(B) make determinations regarding whether the criminal history record
information received in response to a criminal history background check
conducted under this section indicates that the covered individual has
a criminal history record that may render the covered individual unfit
to provide care to children, based on the criteria described in paragraph
(3);
`(C) convey a fitness determination to the applicant processing center;
`(D) specify the source of the criminal history information upon which
a fitness determination is based; and
`(E) work with the applicant processing center and the Federal Bureau
of Investigation to develop procedures and processes to ensure that criminal
history background check requests are being completed within the time
periods specified in subsection (e).
`(A) IN GENERAL- Subject to subparagraph (B), the fitness determination
program shall use the criteria relating to when criminal history record
information indicates that an individual has a criminal history record
that may render the individual unfit to provide care to children that
were established for the Child Safety Pilot Program under section 108(a)(3)
of the PROTECT Act (42 U.S.C. 5119a note).
`(B) REVIEW- The Attorney General and the National Center for Missing
and Exploited Children, in coordination with national organizations representing
a range of covered entities, shall review the criteria described in subparagraph
(A) and make any changes needed to use such criteria in the fitness determination
program.
`(1) IN GENERAL- Criminal background checks shall be completed not later
than 10 business days after the date that a request for a national background
check is received by the applicant processing center. The applicant processing
center shall work with the National Center for Missing and Exploited Children
and the Federal Bureau of Investigation to ensure that the time limits under
this subsection are being achieved.
`(2) APPLICATION PROCESSING- The applicant processing center shall electronically
submit a national background check request to the national criminal history
background check system and, if appropriate, the participating State authorized
agency not later than 3 business days after the date that a request for
a national background check is received by the applicant processing center.
`(3) CONDUCT OF BACKGROUND CHECKS- The Federal Bureau of Investigation and,
if appropriate, a State authorized agency shall provide criminal history
records information to the National Center for Missing and Exploited Children
not later than 3 business days after the date that the Federal Bureau of
Investigation or State authorized agency, as the case may be, receives a
request for a nationwide background check from the applicant processing
center.
`(4) FITNESS DETERMINATIONS- The National Center for Missing and Exploited
Children shall convey a fitness determination to a participating entity
and the applicant processing center not later than 4 business days after
the date that the National Center for Missing and Exploited Children has
received criminal history records from the Federal Bureau of Investigation
and, if appropriate, each applicable State authorized agency.
`(f) Participation in Program-
`(1) IN GENERAL- The applicant processing center shall determine whether
an entity is a covered entity and whether that covered entity should be
approved as a participating entity, based on the consultation conducted
under paragraph (2).
`(2) CONSULTATION- In determining how many covered entities to approve as
participating entities, the applicant processing center shall consult quarterly
with the Federal Bureau of Investigation and the National Center for Missing
and Exploited Children to determine the volume of requests for fitness determinations
that can be completed, based on the capacity of the applicant processing
center and the fitness determination program, the availability of resources,
and the demonstrated need for such determinations in order to protect children.
`(3) PREFERENCE FOR NONPROFIT ORGANIZATIONS- In determining whether a covered
entity should be approved as a participating entity under paragraph (1),
the applicant processing center shall give preference to any organization
participating in the Child Safety Pilot Program under section 108(a)(3)
of the PROTECT Act (42 U.S.C. 5119a note) on the date of enactment of the
Child Protection Improvements Act of 2008 and to any other nonprofit organizations.
`(g) Rights of Covered Individuals-
`(1) IN GENERAL- A covered individual who is the subject of a nationwide
background check under this section may contact the Federal Bureau of Investigation
and, if appropriate, a State authorized agency to--
`(A) request that the full criminal history report of that covered individual
be provided to that covered individual or the applicable participating
entity not later than 10 business days after the date of that request;
and
`(B) challenge the accuracy and completeness of the criminal history record
information in the criminal history report.
`(2) RESOLUTION OF CHALLENGES- The Federal Bureau of Investigation and,
if appropriate, a State authorized agency shall promptly make a determination
regarding the accuracy and completeness of any criminal history record information
challenged under paragraph (1)(B).
`(h) Authorization of Appropriations-
`(1) IN GENERAL- There are authorized to be appropriated to the Attorney
General $5,000,000 for fiscal year 2008, to--
`(A) establish and carry out the duties of the applicant processing center
established under this section;
`(B) establish and carry out the fitness determination program; and
`(C) pursue technologies and procedures to streamline and automate processes
to enhance cost efficiency.
`(2) FITNESS DETERMINATIONS- There are authorized to be appropriated to
the Attorney General to carry out the agreement under this section with
the National Center for Missing and Exploited Children $1,000,000 for each
of fiscal years 2009 through 2013 to support the fitness determination program
and so that fees for nonprofit organizations under that program are as low
as possible.
`(3) SENSE OF CONGRESS- It is the sense of Congress that in fiscal year
2009, and each fiscal year thereafter, the fees collected by the applicant
processing center should be sufficient to carry out the duties of the applicant
processing center under this section and to help support the fitness determination
program.
`(i) Report to Congress- The Attorney General shall, on an annual basis, submit
to Congress a report on the participating entities, the number of covered
individuals submitting applications under this section, and the data on the
number and types of fitness determinations issued under this section.
`(j) Limitation on Liability-
`(1) IN GENERAL- A participating entity shall not be liable in an action
for damages solely for failure to conduct a criminal background check on
a covered individual, nor shall a State or political subdivision thereof
nor any agency, officer, or employee thereof, be liable in an action for
damages for the failure of a participating entity (other than itself) to
take action adverse to a covered individual who was the subject of a background
check.
`(2) RELIANCE- The applicant processing center or a participating entity
that reasonably relies on a fitness determination or criminal history record
information received in response to a background check under this section
shall not be liable in an action for damages based on the inaccuracy or
incompleteness of that information.
`(3) NATIONAL CENTER FOR MISSING AND EXPLOITED CHILDREN-
`(A) IN GENERAL- Except as provided in subparagraphs (B) and (C), the
National Center for Missing and Exploited Children, including a director,
officer, employee, or agent of the National Center for Missing and Exploited
Children, shall not be liable in an action for damages relating to the
performance of the responsibilities and functions of the National Center
for Missing and Exploited Children under this section.
`(B) INTENTIONAL, RECKLESS, OR OTHER MISCONDUCT- Subparagraph (A) shall
not apply in an action if the National Center for Missing and Exploited
Children, or a director, officer, employee, or agent of the National Center
for Missing and Exploited Children, engaged in intentional misconduct
or acted, or failed to act, with actual malice, with reckless disregard
to a substantial risk of causing injury without legal justification, or
for a purpose unrelated to the performance of responsibilities or functions
under this section.
`(C) ORDINARY BUSINESS ACTIVITIES- Subparagraph (A) shall not apply to
an act or omission relating to an ordinary business activity, such as
an activity involving general administration or operations, the use of
motor vehicles, or personnel management.'.
SEC. 4. EXTENSION OF CHILD SAFETY PILOT.
Section 108(a)(3)(A) of the PROTECT Act (42 U.S.C. 5119a note) is amended--
(1) by striking `60-month'; and
(2) by adding at the end the following: `The Child Safety Pilot Program
under this paragraph shall terminate on the date that the program for national
criminal history background checks for child-serving organizations established
under the Child Protection Improvements Act of 2008 is operating and able
to enroll any organization using the Child Safety Pilot Program.'.
END
