[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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