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34 U.S.C. § 40102

Section 40102 · Background checks

Current version, with additions and removals from the October 9, 1998 version.

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Current — March 23, 2018
As of October 9, 1998
(a) In general
(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.
(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.

(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.

(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) and with procedures for requesting national criminal fingerprint background checks, if any, established by the State.
(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
(b) Guidelines

The procedures established under subsection (a) shall require—

The procedures established under subsection (a) shall require—

(1) that no qualified entity may request a background check of a provider under subsection (a) unless the provider first provides a set of fingerprints and completes and signs a statement that—
(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 provider;
(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 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;
(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 provider that the entity may request a background check under subsection (a);
(C) notifies the covered individual that the entity may request a background check under subsection (a);
(D) notifies the provider of the provider's rights under paragraph (2); and
(D) notifies the covered individual of the covered individual'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;
(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 each provider who is the subject of a background check is entitled—

(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) to obtain a copy of any background check report; and
(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) 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;
(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

(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;
(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 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
(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).

(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).

(c) Regulations
(c) Regulations

(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.

(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.

(2) The Attorney General shall, to the maximum extent possible, encourage the use of the best technology available in conducting background checks.

(d) Liability
(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.
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
(e) Fees

(1) State program

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.
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).

(C) Criminal history review criteria

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.

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