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:

Program for national criminal history background checks for child-serving organizations

(a)

Definitions

In this section— (1)the term background check designee means the entity or organization, if any, designated by or entering an agreement with the Attorney General under subsection (b)(3)(A) to carry out or assist in carrying out the duties described in subsection (c); (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 (B)who— (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 criminal history review designee means the entity or organization, if any, designated by or entering an agreement with the Attorney General under subsection (b)(3)(B) to carry out or assist in carrying out the criminal history review program; (6)the term criminal history review program means the program established under subsection (b)(1)(B); (7)the term identification document has the meaning given that term in section 1028 of title 18, United States Code; (8)the term participating entity means a covered entity that is— (A)located in a State that does not have a qualified State program; and (B)approved under subsection (f) to receive nationwide background checks in accordance with subsection (c) and participate in the criminal history review program; (9)the term qualified State program means a program of a State authorized agency that the Attorney General determines is meeting the standards identified in subsection (b)(2) to ensure that a wide range of youth-serving organizations have affordable and timely access to nationwide background checks; (10)the term open arrest means an arrest relating to which charges may still be brought, taking into consideration the applicable statute of limitations; (11)the term pending charge means a criminal charge that has not been resolved through conviction, acquittal, dismissal, plea bargain, or any other means; (12)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 (13)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

(1)

In general

Not later than 180 days after the date of enactment of the Child Protection Improvements Act of 2008, the Attorney General shall— (A)establish policies and procedures to carry out the duties described in subsection (c); and (B)establish a criminal history review program in accordance with subsection (d). (2)

Assessments

The Attorney General shall conduct— (A)an annual assessment of each State authorized agency to determine whether the agency operates a qualified State program, including a review of whether the State authorized agency— (i)has designated a wide range of covered entities as eligible to submit State criminal background check requests and nationwide background check requests to the State authorized agency; (ii)charges a covered entity not more than a total of $25 and the fee charged by the Federal Bureau of Investigation for a nationwide background check; and (iii)returns requests for State criminal background checks and nationwide background checks to a covered entity not later than 10 business days after the date on which the request was made; and (B)in addition to an annual assessment under subparagraph (A), an assessment described in that subparagraph of a State authorized agency if— (i)a State authorized agency that does not have a qualified State program requests such an assessment; or (ii)the Attorney General receives reports from covered entities indicating that a State authorized agency that has a qualified State program no longer meets the standards described in subparagraph (A). (3)

Designees

The Attorney General may— (A)designate or enter into an agreement with an entity or organization that has an established history of serving the interests of children to carry out or assist in carrying out the duties described in subsection (c); and (B)designate or enter into an agreement with 1 or more Federal, State, or local government agencies to carry out or assist in carrying out the criminal history review program. (c)

Access to Nationwide Background Checks

(1)

Purpose

The purpose of this section 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 Attorney General or the background check designee shall— (A)handle inquiries from covered entities and inform covered entities about how to request nationwide background checks— (i)for a covered entity located in a State with a qualified State program, by referring the covered entity to the State authorized agency; and (ii)for a covered entity located in a State without a qualified State program, by providing information on the requirements to become a participating entity; (B)provide participating entities with access to nationwide background checks on covered individuals in accordance with this section; (C)receive paper and electronic requests for nationwide background checks on covered individuals from participating entities; (D)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 Attorney General or the background check designee and provide criminal history records to the Attorney General or the criminal history review designee; and (ii)a participating entity may elect to obtain a State criminal background check, in addition to a nationwide background check, through 1 unified request to the Attorney General or the background check designee; (E)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; (F)collect a fee to conduct the nationwide background check, and, if appropriate, a State criminal background check, and remit fees to the Attorney General or the criminal history review designee, the Federal Bureau of Investigation, and, if appropriate, the State authorized agencies; and (G)coordinate with the Federal Bureau of Investigation, participating State authorized agencies, and the Attorney General or the criminal history review designee to ensure that background check requests are being completed within the time periods specified in subsection (e). (3)

Required information

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)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; (iii)notifies the covered individual that the signature of the covered individual constitutes consent to participate in the criminal history review program, under which the participating entity may be informed if the criminal history records of the covered individual reveal a criminal history that warrants special concern or further inquiry; (iv)notifies the covered individual that the covered individual shall be provided with a copy of the criminal history records of the covered individual and shall have 10 business days to review the records, challenge the accuracy or completeness of any information in the records, or withdraw consent to participate in the criminal history review program before any information about the criminal history of the covered individual is provided to the participating entity; and (v)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. (4)

Fees

(A)

In general

The Attorney General or the background check designee may collect a fee to defray the costs of carrying out the duties described in this subsection, the costs of the Federal Bureau of Investigation and State and local agencies in resolving the accuracy of criminal history records of covered individuals, and the duties of the criminal history review designee under this section— (i)for a nationwide background check and criminal history review, in an amount not to exceed the lesser of— (I)the sum of— (aa)the actual cost to the Attorney General or the background check designee of conducting a nationwide background check; (bb)the actual cost to the Attorney General or the criminal history review designee of conducting a criminal history review under this section; and (cc)any costs associated with resolving inaccuracies, omissions, or challenges to a covered individual’s criminal history; or (II)to the extent practicable, no greater than $25 for any participating entity; and (ii)for a State criminal background check described in paragraph (2)(D), in the amount specified in the agreement with the applicable State authorized agency, not to exceed $25. (B)

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)

Criminal History Review Program

(1)

Purpose

The purpose of the criminal history review program is to provide participating entities with reliable and accurate information regarding whether a covered individual has been convicted of, or has an open arrest or pending charges for, a crime that may bear upon the fitness of the covered individual to have responsibility for the safety and well-being of the children in their care. (2)

Requirements

The Attorney General or the criminal history review designee shall— (A)establish procedures to securely receive criminal history records from the Federal Bureau of Investigation, if necessary, and from State authorized agencies, if appropriate; (B)establish procedures to resolve potentially incomplete records, under which the Attorney General or the criminal history review designee shall— (i)determine whether the criminal history record— (I)includes an arrest— (aa)that would meet the criteria described in paragraph (3)(B)(ii) if it were an open arrest; and (bb)relating to which the criminal history record does not indicate whether charges resulted from the arrest; (II)includes a criminal charge— (aa)for which a conviction would meet the criteria described in subparagraph (A) or (B) of paragraph (3); and (bb)relating to which the criminal history record does not indicate any disposition of the charge; or (III)includes a criminal charge— (aa)that would meet the criteria described in paragraph (3)(B)(ii) if it were a pending charge; and (bb)relating to which the criminal history record does not indicate any disposition of the charge; and (ii)if the criminal history record includes an arrest or charge described in clause (i), request that the Federal Bureau of Investigation— (I)determine the status of any such arrest or charge; (II)update the criminal history record with any disposition information; and (III)convey the result of the determination and any updated record to the Attorney General or criminal history review designee; (C)after receiving a criminal history record from the Federal Bureau of Investigation and, if necessary, resolving any potentially incomplete information through the procedures described in subparagraph (B), transmit to the covered individual— (i)the criminal history records; (ii)a detailed notification of the rights of the covered individual under subsection (g); and (iii)information about how to contact the Attorney General or criminal history review designee for the purpose of challenging the accuracy or completeness of any information in the criminal history record or to withdraw consent to participate in the criminal history review program; (D)if the covered individual informs the Attorney General or criminal history review designee that the covered individual intends to challenge the accuracy or completeness of any information in the criminal history record, assist the covered individual in contacting the appropriate persons or offices within the Federal Bureau of Investigation or State authorized agency; (E)make determinations regarding whether the criminal history records received in response to a criminal history background check conducted under this section indicate that the covered individual has a criminal history that may bear on the covered individual’s fitness to provide care to children, based solely on the criteria described in paragraph (3); (F)unless the covered individual has withdrawn consent to participate in the criminal history review program, convey to the participating entity that submitted the request for a nationwide background check— (i)which of the 3 categorizations described in paragraph (3) criminal conviction of special concern identified, further inquiry recommended, or no criminal records of special concern identified apply to the covered individual; (ii)information and guidance relating to the appropriate use of criminal history information when making decisions regarding hiring employees and using volunteers; (iii)if a criminal history that meets the criteria set forth in subparagraph (A) or (B) of paragraph (3) is found, a recommendation to the participating entity to consult with the covered individual in order to obtain more information about the criminal history of the covered individual, and a list of factors to consider in assessing the significance of that criminal history, including— (I)the nature, gravity, and circumstances of the offense, including whether the individual was convicted of the offense; (II)the period of time that has elapsed since the date of the offense or end of a period of incarceration or supervised release; (III)the nature of the position held or sought; and (IV)any evidence of rehabilitation; and (iv)instructions and guidance that, in evaluating the considerations described in clause (iii), the participating entity should consult the Equal Employment Opportunity Commission Policy Statement on the Issue of Conviction Records under Title VII of the Civil Rights Act or any successor thereto issued by the Equal Employment Opportunity Commission; (G)if a covered individual has withdrawn consent to participate in the criminal history review program, inform the participating entity that consent has been withdrawn; (H)work with the Attorney General or the background check designee and the Federal Bureau of Investigation to develop processes and procedures to ensure that criminal history background check requests are completed within the time periods specified in subsection (e); and (I)serve as a national resource center to provide guidance and assistance to participating entities on how to interpret criminal history information, the possible restrictions that apply when making hiring decisions based on criminal histories, and other related information. (3)

Criminal history review criteria

The Attorney General or the criminal history review designee shall, in determining when a criminal history record indicates that a covered individual has a criminal history that may bear on the fitness of the covered individual to provide care to children— (A)assign a categorization of criminal conviction of special concern identified if a covered individual is found to have a conviction that would prevent the individual from being approved as a foster or adoptive parent under section 471(a)(20)(A) of the Social Security Act (42 U.S.C. 671(a)(20)(A)); (B)assign a categorization of further inquiry recommended if a covered individual is found to have— (i)a conviction for a serious misdemeanor involving the same type of conduct prohibited by a felony described in section 471(a)(20)(A) of the Social Security Act (42 U.S.C. 671(a)(20)(A)) that was committed— (I)during the 5-year period ending on the date of the criminal history review; or (II)in the case of a crime against a child, at any time; or (ii)an open arrest or pending charge for a felony described in, or a serious misdemeanor involving the same type of conduct prohibited by a felony described in, section 471(a)(20)(A) of the Social Security Act (42 U.S.C. 671(a)(20)(A)); and (C)assign a categorization of no criminal records of special concern identified for a covered individual that does not meet the criteria described in subparagraph (A) or (B). (e)

Timing

(1)

In general

Unless exceptional circumstances apply, criminal background checks shall be completed according to the time frame under this subsection. The Attorney General or the background check designee shall work with the criminal history review designee and the Federal Bureau of Investigation to ensure that the time limits under this subsection are being achieved. (2)

Application processing

The Attorney General or the background check designee shall electronically submit a national background check request to the Federal Bureau of Investigation and, if appropriate, the participating State authorized agency not later than 2 business days after the date on which a request for a national background check is received by the Attorney General or the background check designee. (3)

Conduct of background checks

The Federal Bureau of Investigation and, if appropriate, a State authorized agency shall provide criminal history records to the Attorney General or the criminal history review designee not later than 2 business days after the date on which the Federal Bureau of Investigation or State authorized agency, as the case may be, receives a request for a nationwide background check from the Attorney General or the background check designee. (4)

Resolution of potentially incomplete records

The Attorney General or criminal history review designee shall submit any request that the Federal Bureau of Investigation investigate potentially incomplete records not later than 3 business days after the date on which the Attorney General or criminal history review designee receives the criminal history records from the Federal Bureau of Investigation or State authorized agency. Unless the Federal Bureau of Investigation certifies that additional time is needed, the Federal Bureau of Investigation shall complete the investigation, and provide the Attorney General or criminal history review designee with the results of the investigation and any updated criminal history records, not later than 5 business days after the date on which Federal Bureau of Investigation receives a request from the Attorney General or criminal history designee. (5)

Provision of records to covered individuals and opportunity to challenge

When the Attorney General or the criminal history review designee finds that a covered individual’s criminal history records fall with the categorizations described in subparagraph (A) or (B) of subsection (d)(3), the Attorney General or criminal history review designee shall provide the covered individual with the criminal history records of the covered individual and a detailed notification of the rights of the covered individual under subsection (g) not later than 1 business day after the date on which the Attorney General or criminal history review designee receives a criminal history record from the Federal Bureau of Investigation and, if necessary, resolves any potentially incomplete information in accordance with subsection (d)(2)(B). The covered individual shall have 10 business days from the date sent to challenge the accuracy or completeness of any information in the criminal history record or to withdraw consent to participate in the criminal history review program. (6)

Criminal history reviews

Unless the Federal Bureau of Investigation certifies that further time is required to resolve a challenge brought by a covered individual, the Attorney General or the criminal history review designee shall convey to the participating entity the information set forth in subparagraph (F) or (G) of subsection (d)(2), as appropriate, 10 business days after providing the covered individuals with the criminal history records of the covered individual and a notification of their rights under subsection (g). (f)

Participation in Program

(1)

In general

The Attorney General or the background check designee shall determine whether an entity is a covered entity and whether that covered entity should be approved as a participating entity, based on— (A)whether the entity is located in a State that has a qualified State program; and (B)the consultation conducted under paragraph (2). (2)

Consultation

In determining how many covered entities to approve as participating entities, the Attorney General or the background check designee shall consult quarterly with the Federal Bureau of Investigation and the criminal history review designee to determine the volume of requests for national background checks that can be completed, based on the capacity of the criminal history review program and the Federal Bureau of Investigation, the availability of resources, and the demonstrated need for national background checks 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 Attorney General or the background check designee 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)

Right of covered individuals To challenge accuracy or completeness of records

A covered individual who is the subject of a nationwide background check under this section may challenge the accuracy and completeness of the criminal history records in the criminal history report as provided in subsection (d)(2)(D), without submitting a separate set of fingerprints or an additional fee. (h)

Duties of the Federal Bureau of Investigation

(1)

Response to a request for criminal background records

Upon request by the Attorney General or background check designee, the Federal Bureau of Investigation shall conduct a nationwide background check and provide any criminal history records to the Attorney General or criminal history review designee. (2)

Open arrests or pending charges

Upon request by the Attorney General or criminal history review designee, the Federal Bureau of Investigation shall— (A)investigate any arrest or charge described in subsection (d)(2)(B)(i) with relevant departments and agencies of the Federal Government and State and local governments; (B)determine the status of any such arrest or charge; (C)update the criminal history record with any disposition information; and (D)convey the result of the determination and any updated criminal history record to the Attorney General or criminal history review designee. (3)

Resolution of challenges

If a covered individual challenges the accuracy or completeness of any information in the criminal history record of the covered individual, the Federal Bureau of Investigation, in consultation with the agency that contributed to the record, shall— (A)investigate the challenge with relevant departments and agencies of the Federal Government and State and local governments; (B)promptly make a determination regarding the accuracy and completeness of the challenged information; and (C)correct any inaccurate or incomplete records. (i)

Authorization of Appropriations

(1)

In general

There are authorized to be appropriated to the Attorney General for each of fiscal years 2009 through 2012 such sums as are necessary to carry out the provisions of this Act. (2)

Sense of the House

It is the sense of the House of Representatives that in fiscal year 2009, and each fiscal year thereafter, the fees collected by the Attorney General or the background check designee should be sufficient to carry out the duties of the Attorney General or the background check designee under this section and to help support the criminal history review program. (j)

Collection of Data and Report to Congress

(1)

In general

Not later than 1 year after the date of enactment of the Child Protection Improvements Act of 2008, and annually thereafter, the Attorney General shall prepare and submit to Congress and make available to the public a report on the programs and procedures established under this Act. (2)

Collection of data

(A)

Definition of demographic characteristics

In this paragraph, the term demographic characteristics includes information pertaining to race, color, ancestry, national origin, age, sex, and marital status. (B)

Compiling

Beginning 90 days after the date of enactment of the Child Protection Improvements Act of 2008, the Attorney General shall compile data regarding— (i)the number and types of participating entities; (ii)the fees charged to participating entities under this section; (iii)the time interval between nationwide background check submissions and responses under this section; (iv)the fiscal impact of this section on State authorized agencies; (v)the number and demographic characteristics of covered individuals submitting a statement described in subsection (c)(3)(A)(iii) as part of a request for a nationwide background check; (vi)the number and demographic characteristics of covered individuals determined to have a criminal history; (vii)the number, type (including the identity of the offense and whether the offense was committed while the covered individual was a juvenile or adult), and frequency of offenses, and length of the period between the date of the offense and the date of the nationwide background check for any covered individuals found to have a criminal history under this section; (viii)the procedures available for covered individuals to challenge the accuracy and completeness of criminal history records under this section; (ix)the number and results of challenges to the accuracy and completeness of criminal history records under this section; (x)the number and types of corrections of erroneous criminal history records based on a challenge under this section; and (xi)the number and types of inquiries for assistance on interpreting a criminal history received by the criminal history review program. (C)

Aggregating data

The Attorney General shall— (i)aggregate the data collected under this paragraph by State and city; and (ii)aggregate the data collected under clauses (v), (vi), and (vii) of subparagraph (B) by race, color, ancestry, national origin, age, sex, and marital status. (D)

Reports

(i)

In general

Not later than 1 year after the date of enactment of the Child Protection Improvements Act of 2008, and annually thereafter, the Attorney General shall prepare and submit to Congress a report concerning the data compiled and aggregated under this paragraph. (ii)

Contents

Each report submitted under clause (i) shall contain— (I)the data compiled and aggregated under this paragraph, organized in such a way as to provide a comprehensive analysis of the programs and procedures established under this section; (II)information regarding and analysis of— (aa)the programs and procedures established under this section; and (bb)the extent such programs and procedures have helped screen individuals who may pose a risk to children; and (III)information regarding and analysis of whether and to what extent the programs and procedures established under this section are having a disparate impact on individuals based on race, color, ancestry, national origin, age, sex, or marital status. (iii)

Recommendations

A report submitted under clause (i) may contain recommendations to Congress on possible legislative improvements to this section. (iv)

Additional information

Upon the request of any member of Congress, the Attorney General shall make available any of the data compiled or aggregated under this paragraph. The Attorney General shall not make available any data that identifies specific individuals. (k)

Limitation on Liability

(1)

In general

(A)

Failure to conduct criminal background checks

No participating entity shall be liable in an action for damages solely for failure to conduct a criminal background check on a covered individual. (B)

Failure to take adverse action against covered individual

No participating entity shall be liable in an action for damages solely for a failure to take action adverse to a covered individual upon receiving any notice of criminal history from the Attorney General or the criminal history review designee under subsection (d)(2)(F). (2)

Reliance

A participating entity that reasonably relies on criminal history records 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)

Criminal history review program

(A)

In general

Except as provided in subparagraphs (B) and (C), the criminal history review designee, including a director, officer, employee, or agent of the criminal history review designee, shall not be liable in an action for damages relating to the performance of the responsibilities and functions of the criminal history review designee under this section. (B)

Intentional, reckless, or other misconduct

Subparagraph (A) shall not apply in an action if the criminal history review designee, or a director, officer, employee, or agent of the criminal history review designee, 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. (4)

Civil claims of damages

Nothing in this subsection shall apply in actions for damages based upon title VII of the Civil Rights Act of 1964 or the Fair Credit Report Act. (l)

Privacy of Information

(1)

Prohibition on unauthorized disclosure or use of criminal history records

Except for a covered individual, any entity or individual authorized to receive or transmit fingerprints or criminal history records under this Act— (A)shall use the fingerprints, criminal history records, or information in the criminal history records only for the purposes specifically set forth in this Act; (B)shall allow access to the fingerprints, criminal history records, or information in the criminal history records only to those employees of the entity, and only on such terms, as are necessary to fulfill the purposes set forth in this Act; (C)shall not disclose the fingerprints, criminal history records, or information in the criminal history records, except as specifically authorized under this Act; (D)shall keep a written record of each authorized disclosure of the fingerprints, criminal history records, or the information in the criminal history records; and (E)shall maintain adequate security measures to ensure the confidentiality of the fingerprints, the criminal history records, and the information in the criminal history records. (2)

Compliance

(A)

In general

The Attorney General shall promulgate regulations to ensure the enforcement of the nondisclosure requirements under paragraph (1) and to provide for appropriate sanctions in the case of violations of the requirements. (B)

Participating entities and designees

The participation in any program under this section by an entity or organization that enters into an agreement with the Attorney General to carry out the duties described in subsection (c) or to carry out the criminal history review program shall be conditioned on the person— (i)establishing procedures to ensure compliance with, and respond to any violations of, paragraph (1); and (ii)maintaining substantial compliance with paragraph (1). (3)

Destruction of records

(A)

In general

Except as provided in subparagraph (B), the Attorney General, the background check designee, and the criminal history review designee shall destroy any fingerprints, either in paper or electronic form, or criminal history record received for the purpose of carrying out the provisions of this Act after any transaction based on the fingerprints or criminal history record is completed, and shall not maintain the fingerprints, the criminal history records, or the information in the criminal history record in any form. (B)

Repeat applicants

A covered individual may sign a release permitting the Attorney General or criminal history review designee to retain the fingerprints and criminal history record of the covered individual for a period not to exceed 5 years, for the sole purpose of participating in the criminal history review program on a subsequent occasion.