S 2756 I
110th CONGRESS
2d Session
S. 2756
To amend the National Child Protection Act of 1993 to establish
a permanent background check system.
IN THE SENATE OF THE UNITED STATES
March 13, 2008
Mr. BIDEN (for himself, Mr. HATCH, and Mr. SPECTER) introduced the
following bill; which was read twice and referred to the Committee on
Health, Education, Labor, and Pensions
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 indicate 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) purse 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 THE SENATE- It is the sense of the Senate 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
