42 U.S.C. § 5119a : US Code - Section 5119A: Background checks

Search 42 U.S.C. § 5119a : US Code - Section 5119A: Background checks

(a) In general
(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.