34 U.S.C. § 40102 — Background checks

submitted 33 years ago by Pub. L. 103-209 to r/title-34-CRIME-CONTROL-AND-LAW-ENFORCEMENT · 1,523 words · no verdicts yet

in plain englishAI-generated · not legal advice

States and certain organizations can run background checks on caregivers for children, the elderly, or people with disabilities. The Attorney General runs a national program for groups in states without their own system. The law sets rules for fingerprints, notice, appeals, fees, and liability.

(a) In general. (1) A state may set up its own procedures (by state law or regulation) letting "qualified entities" it designates ask a state agency to run a nationwide background check on a "covered individual" — someone who might be responsible for the safety of children, the elderly, or people with disabilities — to see if that person has a disqualifying conviction. (2) The state agency must check state and federal criminal history records and try to answer within 15 business days. (3)(A) The Attorney General must set up a federal program to give qualified entities national background-check access, but only in states that don't already have their own procedures, or that allow the federal program to be used anyway. This federal program cannot be used if another federal law already requires a different national background-check program. (B) A qualified entity in that situation can ask a "designated entity" (an organization the Attorney General has approved to help run this program) for a national background check and criminal history review, following the rules in (b) below and any other rules the Attorney General or the state sets. (b) Guidelines. Any procedure set up under (a) must require: (1) Before requesting a check, the covered individual must give fingerprints and sign a statement that: (A) has their name, address, and birth date from a valid ID; (B) says whether they've been convicted of a crime, and if so, describes it; (C) tells them the entity may run a background check; (D) tells them about their appeal rights under (2) below; and (E) warns them the entity may deny them access to the people it cares for before the check is even finished. (2) The state (or, where there's no state procedure, the designated entity) must make sure: (A) the covered individual can get a copy of their background check report; (B) they can appeal the results to challenge wrong or incomplete information, and get a quick decision on that appeal before any final decision is made; (C) they're told about the right to appeal, told how to use it, get a timely decision, and that the appeal process follows Title VII of the Civil Rights Act of 1964; and (D) an agency that gets a report missing outcome information must dig through whatever state and local records are available to fill the gaps. (3) Whichever agency handles it, a report missing outcome data must be researched the same way, using available state and local records. (4) The agency or designated entity must decide whether the covered individual has a disqualifying conviction or pending indictment, and tell the qualified entity what it decided. (5) Any background check under (a) must be handled under the rules of Public Law 92–544 — except this doesn't apply to a national fingerprint check requested through the federal program in (a)(3). (c) Regulations. (1) The Attorney General can write further rules needed to carry out this chapter, covering security, confidentiality, accuracy, proper use, misuse, sharing of information, audits, and recordkeeping. (2) The Attorney General must push for using the best available technology for background checks. (d) Liability. A qualified entity can't be sued for damages just because it didn't run a background check. Neither can a state or local government (or their agencies, officers, or employees), nor a designated entity (or its officers or employees), be sued for damages because some other qualified entity failed to act on a background check. (e) Fees. (1) State program: For a fingerprint-based check under a state requirement adopted after December 20, 1993, the fees the state and FBI charge can't exceed the actual cost of the check. (2) Federal program: For a check run under the federal program in (a)(3), the designated entity's fees must recover its full costs, and it must pass along the FBI's published fee to the Attorney General. (3) Fees can't discourage volunteers: The fee system must be designed so fees don't scare off volunteers who want to help care for children, the elderly, or people with disabilities. If a qualified entity isn't a 501(c)(3) nonprofit, its fee can't be less than the combined FBI and designated-entity cost. (f) National criminal history background check and criminal history review program. (1) National criminal history background check: When a designated entity gets a request from a qualified entity under (a)(3), it forwards the request to the Attorney General, who — through the FBI Director — runs a fingerprint-based national check and sends the results back to the designated entity. The designated entity can also run a state database check if asked. (2) Criminal history review: (A) The Attorney General must designate one or more entities (never a federal agency) to make fitness determinations. (B) A designated entity uses the information from (1) to decide whether the person is fit, following criteria described in (C). (C) The Attorney General must set, by rule, the criteria designated entities use to judge fitness, based on criteria from a specific 2003 federal law provision and from section 9858f of title 42.

the actual law source: uscode.house.gov ↗public domain

(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 covered individual has been convicted of a crime that bears upon the covered individual’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)

(A)

The Attorney General shall establish a program, in accordance with this section, to provide qualified entities located in States that do not have in effect procedures described in paragraph (1), or qualified entities located in States that do not prohibit the use of the program established under this paragraph, with access to national criminal history background checks on, and criminal history reviews of, covered individuals. In any case where the use of a Federal national criminal history background check program is required pursuant to Federal law as of the effective date of this subparagraph, the program under this subparagraph may not be used.

(B)

A qualified entity described in subparagraph (A) may submit to the appropriate designated entity a request for a national criminal history background check on, and a criminal history review of, a covered individual. Qualified entities making a request under this paragraph shall comply with the guidelines set forth in subsection (b), and with any additional applicable procedures set forth by the Attorney General or by the State in which the entity is located.

(b) Guidelines

The procedures established under subsection (a) shall require—

(1)

that no qualified entity may request a background check of a covered individual under subsection (a) unless the covered individual 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 covered individual;

(B)

the covered individual has not been convicted of a crime and, if the covered individual has been convicted of a crime, contains a description of the crime and the particulars of the conviction;

(C)

notifies the covered individual that the entity may request a background check under subsection (a);

(D)

notifies the covered individual of the covered individual’s rights under paragraph (2); and

(E)

notifies the covered individual that prior to the completion of the background check the qualified entity may choose to deny the covered individual access to a person to whom the qualified entity provides care;

(2)

that the State, or in a State that does not have in effect procedures described in subsection (a)(1), the designated entity, ensures that—

(A)

each covered individual who is the subject of a background check under subsection (a) is entitled to obtain a copy of any background check report;

(B)

each covered individual who is the subject of a background check under subsection (a) is provided a process by which the covered individual may appeal the results of the background check to challenge the accuracy or completeness of the information contained in the background report of the covered individual and obtain a prompt determination as to the validity of such challenge before a final determination is made by the authorized agency;

(C)

(i)

each covered individual described in subparagraph (B) is given notice of the opportunity to appeal;

(ii)

each covered individual described in subparagraph (B) will receive instructions on how to complete the appeals process if the covered individual wishes to challenge the accuracy or completeness of the information contained in the background report of the covered individual; and 1

(iii)

the appeals process is completed in a timely manner for each covered individual described in subparagraph (B); 2

(iv)

the appeals process is consistent with title VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e et seq.); and

(D)

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;

(3)

that an authorized agency or designated entity, as applicable,,3 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 or designated entity, as applicable, shall make a determination whether the covered individual has been convicted of, or is under pending indictment for, a crime that bears upon the covered individual’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) 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).

(1)

The Attorney General may by regulation prescribe such other measures as may be required to carry out the purposes of this chapter, 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 covered individual, nor shall a State or political subdivision thereof nor any agency, officer or employee thereof,,³ nor shall any designated entity nor any 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 covered individual who was the subject of a background check.

(e) Fees

(1) State program

In the case of a background check conducted pursuant to a State requirement adopted after December 20, 1993, conducted with fingerprints on a covered individual, the fees collected by authorized State agencies and the Federal Bureau of Investigation may not exceed the actual cost of the background check conducted with fingerprints.

(2) Federal program

In the case of a national criminal history background check and criminal history review conducted pursuant to the procedures established pursuant to subsection (a)(3), the fees collected by a designated entity shall be set at a level that will ensure the recovery of the full costs of providing all such services. The designated entity shall remit the appropriate portion of such fee to the Attorney General, which amount is in accordance with the amount published in the Federal Register to be collected for the provision of a criminal history background check by the Federal Bureau of Investigation.

(3) Ensuring fees do not discourage volunteers

A fee system under this subsection shall be established in a manner that ensures that fees to qualified entities for background checks do not discourage volunteers from participating in programs to care for children, the elderly, or individuals with disabilities. A fee charged to a qualified entity that is not organized under section 501(c)(3) of title 26 may not be less than the total sum of the costs of the Federal Bureau of Investigation and the designated entity.

(f) National criminal history background check and criminal history review program

(1) National criminal history background check

Upon a designated entity receiving notice of a request submitted by a qualified entity pursuant to subsection (a)(3), the designated entity shall forward the request to the Attorney General, who shall, acting through the Director of the Federal Bureau of Investigation, complete a fingerprint-based check of the national criminal history background check system, and provide the information received in response to such national criminal history background check to the appropriate designated entity. The designated entity may, upon request from a qualified entity, complete a check of a State criminal history database.

(2) Criminal history review

(A) Designated entities

The Attorney General shall designate, and enter into an agreement with, one or more entities to make determinations described in subparagraph (B). The Attorney General may not designate and enter into an agreement with a Federal agency under this subparagraph.

(B) Determinations

A designated entity shall, upon the receipt of the information described in paragraph (1), make a determination of fitness described in subsection (b)(4), using the criteria described in subparagraph (C).

The Attorney General shall, by rule, establish the criteria for use by designated entities in making a determination of fitness described in subsection (b)(4). Such criteria shall be based on the criteria established pursuant to section 108(a)(3)(G)(i) of the Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act of 2003 (34 U.S.C. 40102 note) and section 9858f of title 42.

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; Pub. L. 115–141, div. S, title I, § 101(a)(1), Mar. 23, 2018, 132 Stat. 1123.)

history & why it existsrecord from the source credit

1993Enacted · Pub. L. 103-209 · 107 Stat. 2491
1994Amended · Pub. L. 103-322 · 108 Stat. 2131, 2132
1998Amended · Pub. L. 105-251 · 112 Stat. 1885
2018Amended · Pub. L. 115-141 · 132 Stat. 1123

A history note hasn’t been published yet. The record shows enactment by Pub. L. 103-209 on 1993-12-20.

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