2012 US Code
Title 42 - The Public Health and Welfare
Chapter 67 - CHILD ABUSE PREVENTION AND TREATMENT AND ADOPTION REFORM (§§ 5101 - 5119c)
Subchapter VI - CHILD ABUSE CRIME INFORMATION AND BACKGROUND CHECKS (§§ 5119 - 5119c)
Section 5119a - Background checks
|Publication Title||United States Code, 2012 Edition, Title 42 - THE PUBLIC HEALTH AND WELFARE|
|Category||Bills and Statutes|
|Collection||United States Code|
|SuDoc Class Number||Y 1.2/5:|
|Contained Within||Title 42 - THE PUBLIC HEALTH AND WELFARE |
CHAPTER 67 - CHILD ABUSE PREVENTION AND TREATMENT AND ADOPTION REFORM
SUBCHAPTER VI - CHILD ABUSE CRIME INFORMATION AND BACKGROUND CHECKS
Sec. 5119a - Background checks
|Laws in Effect as of Date||January 15, 2013|
|Source Credit||Pub. L. 103-209, §3, Dec. 20, 1993, 107 Stat. 2491; Pub. L. 103-322, title XXXII, §320928(a)(1), (2), (c), (e), Sept. 13, 1994, 108 Stat. 2131, 2132; Pub. L. 105-251, title II, §222(a), (b), Oct. 9, 1998, 112 Stat. 1885.|
|Statutes at Large References||86 Stat. 1109 |
107 Stat. 2491
108 Stat. 2131
112 Stat. 1885
117 Stat. 655, 883
118 Stat. 3755
119 Stat. 3131
122 Stat. 2974, 4301
124 Stat. 41, 3606
|Public Law References||Public Law 92-544, Public Law 103-209, Public Law 103-322, Public Law 105-251, Public Law 108-21, Public Law 108-68, Public Law 108-458, Public Law 109-162, Public Law 110-296, Public Law 110-408, Public Law 111-143, Public Law 111-341|
(1) A State may have in effect procedures (established by State statute or regulation) that require qualified entities designated by the State to contact an authorized agency of the State to request a nationwide background check for the purpose of determining whether a provider has been convicted of a crime that bears upon the provider's fitness to have responsibility for the safety and well-being of children, the elderly, or individuals with disabilities.
(2) The authorized agency shall access and review State and Federal criminal history records through the national criminal history background check system and shall make reasonable efforts to respond to the inquiry within 15 business days.
(3) In the absence of State procedures referred to in paragraph (1), a qualified entity designated under paragraph (1) may contact an authorized agency of the State to request national criminal fingerprint background checks. Qualified entities requesting background checks under this paragraph shall comply with the guidelines set forth in subsection (b) of this section and with procedures for requesting national criminal fingerprint background checks, if any, established by the State.(b) Guidelines
The procedures established under subsection (a) of this section shall require—
(1) that no qualified entity may request a background check of a provider under subsection (a) of this section unless the provider first provides a set of fingerprints and completes and signs a statement that—
(A) contains the name, address, and date of birth appearing on a valid identification document (as defined in section 1028 of title 18) of the provider;
(B) the provider has not been convicted of a crime and, if the provider has been convicted of a crime, contains a description of the crime and the particulars of the conviction;
(C) notifies the provider that the entity may request a background check under subsection (a) of this section;
(D) notifies the provider of the provider's rights under paragraph (2); and
(E) notifies the provider that prior to the completion of the background check the qualified entity may choose to deny the provider unsupervised access to a person to whom the qualified entity provides care;
(2) that each provider who is the subject of a background check is entitled—
(A) to obtain a copy of any background check report; and
(B) to challenge the accuracy and completeness of any information contained in any such report and obtain a prompt determination as to the validity of such challenge before a final determination is made by the authorized agency;
(3) that an authorized agency, upon receipt of a background check report lacking disposition data, shall conduct research in whatever State and local recordkeeping systems are available in order to obtain complete data;
(4) that the authorized agency shall make a determination whether the provider has been convicted of, or is under pending indictment for, a crime that bears upon the provider's fitness to have responsibility for the safety and well-being of children, the elderly, or individuals with disabilities and shall convey that determination to the qualified entity; and
(5) that any background check under subsection (a) of this section and the results thereof shall be handled in accordance with the requirements of Public Law 92–544, except that this paragraph does not apply to any request by a qualified entity for a national criminal fingerprint background check pursuant to subsection (a)(3) of this section.(c) Regulations
(1) The Attorney General may by regulation prescribe such other measures as may be required to carry out the purposes of this subchapter, including measures relating to the security, confidentiality, accuracy, use, misuse, and dissemination of information, and audits and recordkeeping.
(2) The Attorney General shall, to the maximum extent possible, encourage the use of the best technology available in conducting background checks.(d) Liability
A qualified entity shall not be liable in an action for damages solely for failure to conduct a criminal background check on a provider, 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 qualified entity (other than itself) to take action adverse to a provider who was the subject of a background check.(e) Fees
In the case of a background check pursuant to a State requirement adopted after December 20, 1993, conducted with fingerprints on a person who volunteers with a qualified entity, the fees collected by authorized State agencies and the Federal Bureau of Investigation may not exceed eighteen dollars, respectively, or the actual cost, whichever is less, of the background check conducted with fingerprints. The States shall establish fee systems that insure that fees to non-profit entities for background checks do not discourage volunteers from participating in child care programs.
(Pub. L. 103–209, §3, Dec. 20, 1993, 107 Stat. 2491; Pub. L. 103–322, title XXXII, §320928(a)(1), (2), (c), (e), Sept. 13, 1994, 108 Stat. 2131, 2132; Pub. L. 105–251, title II, §222(a), (b), Oct. 9, 1998, 112 Stat. 1885.)References in Text
Public Law 92–544, referred to in subsec. (b)(5), is Pub. L. 92–544, Oct. 25, 1972, 86 Stat. 1109. Provisions relating to use of funds for the exchange of identification records are contained in section 201 of Pub. L. 92–544, which is set out as a note under section 534 of Title 28, Judiciary and Judicial Procedure. For complete classification of this Act to the Code, see Tables.Amendments
1998—Subsec. (a)(3). Pub. L. 105–251, §222(a), added par. (3).
Subsec. (b)(5). Pub. L. 105–251, §222(b), inserted before period at end “, except that this paragraph does not apply to any request by a qualified entity for a national criminal fingerprint background check pursuant to subsection (a)(3) of this section”.
1994—Subsec. (a)(1). Pub. L. 103–322, §320928(a)(1), substituted “the provider's fitness to have responsibility for the safety and well-being of children, the elderly, or individuals with disabilities” for “an individual's fitness to have responsibility for the safety and well-being of children”.
Subsec. (b)(1)(E). Pub. L. 103–322, §320928(a)(2)(A), substituted “to a person to whom the qualified entity provides care” for “to a child to whom the qualified entity provides child care”.
Subsec. (b)(4). Pub. L. 103–322, §320928(a)(2)(B), substituted “the provider's fitness to have responsibility for the safety and well-being of children, the elderly, or individuals with disabilities” for “an individual's fitness to have responsibility for the safety and well-being of children”.
Subsec. (d). Pub. L. 103–322, §320928(c), inserted “(other than itself)” after “failure of a qualified entity”.
Subsec. (e). Pub. L. 103–322, §320928(e), substituted “eighteen dollars, respectively, or the actual cost, whichever is less,” for “the actual cost”.Pilot Program for National Criminal History Background Checks and Feasibility Study
Pub. L. 108–21, title I, §108, Apr. 30, 2003, 117 Stat. 655, as amended by Pub. L. 108–68, §1, Aug. 1, 2003, 117 Stat. 883; Pub. L. 108–458, title VI, §6401, Dec. 17, 2004, 118 Stat. 3755; Pub. L. 109–162, title XI, §1197, Jan. 5, 2006, 119 Stat. 3131; Pub. L. 110–296, §2, July 30, 2008, 122 Stat. 2974; Pub. L. 110–408, §2, Oct. 13, 2008, 122 Stat. 4301; Pub. L. 111–143, §2, Mar. 1, 2010, 124 Stat. 41; Pub. L. 111–341, §2, Dec. 22, 2010, 124 Stat. 3606, provided that:
“(I) the Boys and Girls Clubs of America;
“(II) the MENTOR/National Mentoring Partnership;
“(III) the National Council of Youth Sports; and
“(IV) any nonprofit organization that provides care, as that term is defined in section 5 of the National Child Protection Act of 1993 (42 U.S.C. 5119c), for children.
“(i) forward to the Attorney General the volunteer's fingerprints; and
“(ii) obtain a statement completed and signed by the volunteer that—
“(I) sets out the provider or volunteer's name, address, date of birth appearing on a valid identification document as defined in section 1028 of title 18, United States Code, and a photocopy of the valid identifying document;
“(II) states whether the volunteer has a criminal record, and, if so, sets out the particulars of such record;
“(III) notifies the volunteer that the Attorney General may perform a criminal history background check and that the volunteer's signature to the statement constitutes an acknowledgment that such a check may be conducted;
“(IV) notifies the volunteer that prior to and after the completion of the background check, the organization may choose to deny the provider access to children; and
“(V) notifies the volunteer of his right to correct an erroneous record held by the Attorney General.
“(1) obtain a copy of their criminal history record report; and
“(2) challenge the accuracy and completeness of the criminal history record information in the report.
“(A) The current state of fingerprint capture and processing at the State and local level, including the current available infrastructure, State system capacities, and the time for each State to process a civil or volunteer print from the time of capture to submission to the Federal Bureau of Investigation (FBI).
“(B) The intent of the States concerning participation in a nationwide system of criminal background checks to provide information to qualified entities.
“(C) The number of volunteers, employees, and other individuals that would require a fingerprint-based criminal background check.
“(D) The impact on the Integrated Automated Fingerprint Identification System (IAFIS) of the Federal Bureau of Investigation in terms of capacity and impact on other users of the system, including the effect on Federal Bureau of Investigation work practices and staffing levels.
“(E) The current fees charged by the Federal Bureau of Investigation, States and local agencies, and private companies to process fingerprints and conduct background checks.
“(F) The existence of ‘model’ or best practice programs which could easily be expanded and duplicated in other States.
“(G) The extent to which private companies are currently performing background checks and the possibility of using private companies in the future to perform any of the background check process, including, but not limited to, the capture and transmission of fingerprints and fitness determinations.
“(H) The cost of development and operation of the technology and the infrastructure necessary to establish a nationwide fingerprint-based and other criminal background check system.
“(I) The extent of State participation in the procedures for background checks authorized in the National Child Protection Act [of 1993] (Public Law 103–209), as amended by the Volunteers for Children Act (sections 221 and 222 of Public Law 105–251).
“(J) The extent to which States currently provide access to nationwide criminal history background checks to organizations that serve children.
“(K) The extent to which States currently permit volunteers to appeal adverse fitness determinations, and whether similar procedures are required at the Federal level.
“(L) The implementation of the 2 pilot programs created in subsection (a).
“(M) Any privacy concerns that may arise from nationwide criminal background checks.
“(N) Any other information deemed relevant by the Department of Justice.
“(O) The extent of participation by eligible organizations in the state pilot program.
“(1) arising from any act or communication by the Center, the director, officer, employee, or agent that results in or contributes to a decision that an individual is unfit to serve as a volunteer for any volunteer organization;
“(2) alleging harm arising from a decision based on the information in an individual's criminal history record that an individual is fit to serve as a volunteer for any volunteer organization unless the Center, the director, officer, employee, or agent is furnished with an individual's criminal history records which they know to be inaccurate or incomplete, or which they know reflect a lesser crime than that for which the individual was arrested; and
“(3) alleging harm arising from a decision that, based on the absence of criminal history information, an individual is fit to serve as a volunteer for any volunteer organization unless the Center, the director, officer, employee, or agent knows that criminal history records exist and have not been furnished as required under this section.”
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