[Congressional Record Volume 148, Number 146 (Wednesday, November 13, 2002)]
[Senate]
[Pages S10877-S10879]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                           PASSAGE OF S. 1868

  Mr. BIDEN. Madam President, I am pleased the Senate passed S. 1868 by 
unanimous consent on October 17, along with a Biden-Thurmond 
substitute. Enactment of this measure will make our children safer, and 
I rise today to explain several of the bill's provisions.
  Today, 87 million of our children are involved in activities provided 
by child and youth organizations which depend heavily on volunteers to 
deliver their services. Millions more elderly and disabled adults are 
served by public and private service organizations. Organizations 
across the country, like the Boys and Girls Clubs, often rely solely on 
volunteers to make these safe havens for kids a place where they can 
learn. The Boys and Girls Clubs and others don't just provide services 
to kids, their work reverberates throughout our communities, as the 
after-school programs they provide help keep kids out of trouble. This 
is juvenile crime prevention at its best, and I salute the volunteers 
who help make these programs work.
  Unfortunately, some of these volunteers and employees come to their 
jobs with less than the best of intentions. According to the National 
Mentoring Partnership, incidents of child sexual abuse in child care 
settings, foster homes and schools ranges from 1 to 7 percent. 
Organizations have tried to weed out bad apples, and today most conduct 
background checks on applicants who seek to work with children. 
Unfortunately, these checks can often take months to complete, can be 
expensive, and many organizations do not have access to the FBI's 
national fingerprint database. These time delays

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and scope limitations are dangerous: a prospective volunteer could pass 
a name-based background check in one State, only to have a past felony 
committed in another jurisdiction go undetected.
  The intent of S. 1868 and the substitute, the Biden-Thurmond National 
Child Protection and Volunteers for Children Improvement Act, are to 
streamline the process for organizations to check the backgrounds of 
potential volunteers and employees. A review of the statutory 
background in this area is appropriate.
  Effective December 20, 1993, the National Child Protection Act, 
``NCPA,'' P.L. 103-209, encouraged States to adopt legislation to 
authorize a national criminal history background check to determine an 
employee's or volunteer's fitness to care for the safety and well-being 
of children. On September 13, 1994, the Violent Crime Control and Law 
Enforcement Act of 1994, P.L. 103-322, expanded the scope of the NCPA 
to include the elderly and individuals with disabilities.
  As envisioned by Congress, the NCPA was to encourage States to have 
in effect national background check procedures that enable a 
``qualified entity'' to determine whether an individual applicant is 
fit to care for the safety and well-being of children, the elderly, or 
individuals with disabilities. The procedures permit this entity to ask 
an authorized State agency to request that the Attorney General run a 
nationwide criminal history background check on an applicant provider. 
``Qualified entity'' is defined at 42 U.S.C. 5119c as ``a business or 
organization, whether public, private, for-profit, not-for-profit, or 
voluntary, that provides care or care placement services, including a 
business or organization that licenses or certifies others to provide 
care or care placement services....''. The authorized agency should 
access and review State and Federal criminal history records through 
the national criminal history background check system and make 
reasonable efforts to respond to an inquiry within 15 business days.

  Congress addressed this issue again in 1998 through enactment of the 
Volunteers for Children Act, Sections 221 and 222 of P.L. 105-251, 
``VCA''. The VCA amended the NCPA to permit child care, elder care, and 
volunteer organizations to request background checks through State 
agencies in the absence of state laws implementing the NCPA.
  Thus, the NCPA, as amended by the VCA, authorizes national 
fingerprint-based criminal history background checks of volunteers and 
employees, including applicants for employment, of qualified entities 
who provide care for children, the elderly, or individuals with 
disabilities, and those who have unsupervised access to such 
populations, regardless of employment or volunteer status, for the 
purpose of determining whether they have been convicted of crimes that 
bear upon their fitness to have responsibility for the safety and well-
being of children, the elderly, or individuals with disabilities.
  Two years ago, organizations seeking to conduct background checks on 
their employees and volunteers made me aware of serious problems with 
the current background check system, problems that were jeopardizing 
the safety of children. Groups like the Boys and Girls Clubs of America 
alerted me that, despite the authorities provided in the NCPA and the 
VCA, national check requests were often delayed, in some jurisdictions 
they were never processed, and that the prohibitive costs of some of 
these checks were discouraging entities from seeking the reviews.
  Under current law, whether they want a State or national criminal 
background check, organizations must apply through their state-
authorized agency. The State agency then performs the State check and 
forwards the request to the FBI for a national check. The FBI responds 
back to the State agency, which then forwards the information back to 
the volunteer organization. In Delaware, the State Police Bureau of 
Identification works with groups to fingerprint prospective workers and 
check their backgrounds.
  A patchwork of statutes and regulations govern background checks at 
the State level; there are currently over 1,200 State statutes 
concerning criminal record checks. This has led to widely different 
situations in each State: different agencies are authorized to perform 
the checks for different types of organizations, distinct forms and 
information are required, and the results are returned in various 
formats that can be difficult to interpret. States have not been 
consistent in their interpretation of the NCPA and VCA. Put simply, the 
current system is extremely cumbersome, particularly for those 
organizations that must check criminal records in multiple States, and 
for those groups employing seasonal workers, such as summer camps, for 
whom time is of the essence when seeking the results of background 
checks.
  After careful study of this issue it became clear to me that the 
concerns of groups such as the National mentoring Partnership and the 
Boys and Girls Clubs are not merely anecdotal. In 1998, the FBI's 
Criminal Justice Information Services, ``CJIS'', Division performed an 
analysis of fingerprints submitted for civil applicant purposes. CJIS 
found that the average transmission time from the point of fingerprint 
to the State bureau was 51.0 days, and from the State bureau to the FBI 
was another 66.6 days, for a total of 117.6 days from fingerprinting to 
receipt by the FBI. The worst performing jurisdiction took 544.8 days 
from fingerprinting to receipt by the FBI. In a survey conducted by the 
National mentoring Partnership, mentoring organizations on average 
waited 6 weeks for the results of a national criminal background check 
to be returned.

  The danger these delays pose to mentoring groups and others cannot be 
overstated. Suppose a group seeks to hire a volunteer who grew up in a 
neighboring jurisdiction to work with children. The group has the 
volunteer fingerprinted at their local police department, forwards 
those prints along to the agency designated by State statute or 
procedure to receive such requests, and then waits for the national 
results. FBI data indicates they will wait close to four months, on 
average, for the final results of the background check. That's too 
long. It forces groups to choose between taking a risk on someone's 
background, not making the hire at all, or seeking out only candidates 
from their jurisdiction for whom a full national background check may 
not be necessary.
  Delay is not the only problem with the current system. The NCPA/VCA 
caps the fees the FBI can charge for national background checks at $24 
for employees. For State fees, the NMCPA/VCA requires States to 
``establish fee systems that insure that fees to nonprofit entities for 
background checks do not discourage volunteers from participating in 
child care programs.'' In a survey of mentoring organizations, the 
National mentoring Partnership found that organizations were paying on 
average $10 for a State records check, plus the fee for a national 
check. For organizations utilizing hundreds of volunteers and 
employees, the costs of conducting through background checks can be 
exorbitant. Small, community-based organizations with limited funding 
often must choose between funding services to children or checking the 
criminal history records of prospective volunteers.
  In an attempt at addressing some of these concerns with the current 
NCPA/VCA system, at the conclusion of the 106th Congress I introduced 
S. 3252. I reintroduced the same bill as S. 1868 in this Congress, and 
I am proud to have Senator Thurmond as a cosponsor. As introduced, S. 
1868 would have permitted qualified entities like the Boys and Girls 
Clubs to apply to a clearinghouse within the Justice Department for 
national criminal history background checks. Checks would have been 
affordable and results would have been quickly returned to the 
qualified entities. The Judiciary Committee took up and passed the 
bill, along with a Biden/Thurmond/DeWine amendment in the nature of a 
substitute.
  On June 18, 2002, the Justice Department sent me a letter outlining 
their views on the legislation as reported by the Committee. In its 
letter, the Department noted that the bill's goal of providing 
effective, efficient national criminal history background checks will 
``help to protect children and other vulnerable segments of the 
nation's population, [and will] promote volunteerism in the United 
States, which is one of the President's priorities.''
  The Department went on to raise several concerns with the 
legislation.

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First, they noted that the funds authorized by the bill to perform the 
checks and operate a new clearinghouse within the Department may be 
prohibitive. The Biden-Thurmond substitute the Senate considers today 
addresses those concerns. In a change from the measure reported by 
the committee, the substitute authorizes the Attorney General to charge 
a modest fee $5 for volunteer checks. In addition, the substitute 
dramatically scales back the duties of the clearinghouse, now labeled 
the ``Office for Volunteer and Provider Screening.'' Where the bill as 
reported charged the clearinghouse with developing model fitness 
standards and applying standards against each applicant utilizing the 
resources of the clearinghouse, the version we consider today 
eliminates this fitness determination requirement. While I still feel 
it would be preferable for the Department to assist qualified entities 
in making these fitness determinations, the substitute provides that 
model standards will be developed and envisions qualified entities then 
using these standards to make their own fitness determinations. S. 1868 
as reported by committee authorized $180 million over five years to 
cover the costs of volunteer checks and to establish the clearinghouse. 
The vision we consider today has scaled this authorization back to $100 
million.

  Second, the Department expressed concerns with language in S. 1868, 
added in Committee at the behest of Senator DeWine and drawn directly 
from his S. 1830, which made amendments to the National Criminal 
History Access an Child Protection Act. There is a difference of 
opinion between the Justice Department and SEARCH, a group created by 
the States to improve the criminal justice system and the quality of 
justice, as to the impact of this language. Resolution has not been 
reached on the matter, and because I do not believe the issue raised by 
language drawn from S. 1830 to be directly related to the issue at hand 
of providing quick and effective background check results to qualified 
entities, the substitute the Senate considers today deletes the 
language objected to by the Justice Department.
  Third, the Department expressed administrative and constitutional 
concerns with the makeup and operations of the clearinghouse described 
in the bill reported out of Committee. I have reviewed the Department's 
concerns and find them to be valid. The language objected to by the 
Department is not a part of the substitute amendment considered today.
  Since introduction of S. 1868, through the Committee markup process, 
and stemming from extensive discussions regarding this measure over the 
past several months, I have agreed to modify the impact of the bill in 
several critical ways. Raised first in Committee by Senator DeWine, and 
then later by SEARCH and other groups, arguments were made to me that 
S. 1868 could unintentionally undercut the work done in many States to 
process background check requests. Senator DeWine rightfully pointed 
out to me that in some States, the system that the Congress put in 
place after enactment of the National Child Protection Act in 1993 and 
the Volunteers for Children Act in 1998 is working. In those cases, we 
should not uproot a system that is effective. The substitute we 
consider today acknowledges this concern. Upon enactment, the clock 
will toll on a one-year period during which the Attorney General will 
review the extent to which States have participated in the NCPA/VCA 
system. At the conclusion of that one year period, the Attorney General 
is charged with designating states as having ``qualified state 
programs''. The substitute lays out several objective criteria designed 
to guide the Attorney General's decision. States that are quickly, 
cheaply, and reliably processing background checks will be recognized 
as having a ``qualified State program'' by the Attorney General and 
will continue to process background check requests as under current 
law. But if the Attorney General determines that a State does not have 
a qualified State program, based upon the criteria delineated in the 
version of S. 1868 we consider today, qualified entities in those 
jurisdictions are permitted to apply directly to the Justice Department 
for background checks. This legislation thus creates a separate track 
for qualified entities seeking national criminal history background 
checks. This track will only be available, however, to qualified 
entities doing business in States without a qualified State program, as 
determined by the Attorney General.

  A concern has been raised during drafting of this measure that the 
substitute does not give the Attorney General the discretion to label a 
State's program as qualified for one category of qualified entities, 
but not qualified for another. The intention of the authors of S. 1868 
is to give the Attorney General that discretion. The language of the 
substitute considered by the Senate today does not require the Attorney 
General to make a blanket determination for a State's entire universe 
of qualified entities. The substitute should be interpreted by the 
Attorney General to permit States to be qualified for some categories 
of qualified entities but not all categories if necessary.
  Other provisions of the version of S. 1868 we consider today deserve 
mention. SEARCH and others have suggested to me that one of the main 
impediments States face in fully implementing the NCPA/VCA is that 
current law does not authorize the Attorney General and States to 
deliver criminal history records information directly to qualified 
entities. S. 1868 changes this and makes clear that the Attorney 
General and States may provide this information to qualified entities 
should they desire to do so.
  Also, we have authorized in this measure grants to the States so they 
can purchase so-called Live-Scan fingerprint technology. These devices 
permit prints to be electronically transmitted, obviating the need for 
fingerprint cards. Wide dissemination of this technology would 
facilitate nationwide background checks, and I am hopeful this grant 
program will be adequately funded so that this equipment can be 
installed throughout the country.
  I would like to thank Robbie Callaway and Steve Salem of the Boys and 
Girls Clubs of America, Margo Pedroso of the National Mentoring 
Partnership, and Abby Shannon of the National Center for Missing and 
Exploited Children for their tireless advocacy on behalf of S. 1868. 
Captain David Deputy of the Delaware State Police and Director of 
Delaware's State Bureau of Identification offered invaluable comments 
throughout the drafting of this measure, and I thank him for his 
assistance. Thanks also to Bob Belair, General Counsel of SEARCH, for 
his helpful suggestions. I would like to pay a special tribute to 
Senator Thurmond, as well as to his Judiciary Committee counsel Scott 
Frick, for their dedication to this bill. I appreciate the assistance 
of Chairman Leahy  and Senator Hatch for agreeing to report S. 1868 out 
of Committee last spring. I am also appreciative of the efforts made by 
Senator DeWine and his staff to move this legislation along. Finally, I 
thank Congressman Mark Foley, the author of the Volunteers for Children 
Act, as well as Elizabeth Nicolson and Bradley Schreiber of his staff, 
for agreeing to introduce this legislation as H.R. 5556 in the other 
body.
  I remain hopeful that S. 1868 can be taken up by the other body and 
sent to the President for signature this year.

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