Background Checks

March 2003 Update

The Volunteers for Children Act, an amendment
to the National Child Protection Act of 1993,
was signed into law by President Clinton on October
9, 1998. The act gives "qualified entities"
the ability to request fingerprint-based national
criminal history background checks of volunteers
and employees. Prior to this law, in all but a
few states, organizations could order only local
and state checks. Thus, if an applicant was convicted
for molesting children in another state, the local
check wouldn’t show those charges. This law allows
organizations to run an applicant’s fingerprints
through a national database. While this is an
important development in legislation protecting
children, inconsistencies in implementation among
states exist. Therefore, ACA will be following
this issue closely to better understand its practical
application.

Defining qualified entity

A "qualified entity" is any business
or organization that provides care, treatment,
education, training, instruction, supervision,
or recreation for children, the elderly, or individuals
with disabilities, whether public, private, for-profit,
nonprofit, or voluntary. The purpose of this criminal
history check is to determine if a prospective
or current employee or volunteer has been convicted
of a crime that affects their fitness to have
responsibility for the safety and well-being of
children, the elderly, or individuals with disabilities.

Representative Mark Foley (R-FL) was the original
sponsor of the bill, which was included in the
larger Crime Identification Technology Act of
1998. The law authorizes a $1.25 billion, five-year
technology grant program for states to help local
law enforcement agencies share electronic information
in national crime databases and improve their
crime laboratories.

Federal law is voluntary

Because the federal law is voluntary, state police
agencies can decide whether or not they want to
conduct the checks, and children’s organizations
can decide whether or not they want to pursue
them. The voluntary nature of the law leads to
inconsistencies in states’ use of the law. According
to Jody Gorran, founder and operations director
of the National Foundation to Prevent Child Sexual
Abuse, Alabama, Texas, and Maine appear to be
moving the slowest in implementing the law.

Requesting fingerprint
checks


To request fingerprint-based national criminal
history background checks of volunteers and employees,
a qualified entity should contact their state
law enforcement agency. Employers will send fingerprints
and other employee information to their state
law enforcement identification bureau, which will
in turn contact the FBI. No group or organization
can request a check unless a set of fingerprints
is obtained from the employee or volunteer, and
the employee or volunteer must also sign a statement
that includes specific information.

Inkless fingerprint kits are available from
organizations such as the National Foundation
to Prevent Child Sexual Abuse. Through the state
law enforcement agency, the organization will
receive a statement detailing whether or not the
individual in question has been convicted of a
crime that bears upon their suitability to provide
care. "Rap sheets" are not released.

Volunteer organizations must pay a fee to state
and federal agencies to access the information.
The combined cost is $40 to $50 for each volunteer
applicant. The crime bill’s grants will help law
enforcement agencies purchase scanners that can
instantly transmit fingerprint data to be compared
with state and national records. With better equipment,
the results will be returned more quickly.

Assessing liability

A group, like a youth service organization, cannot
be liable for damages solely for failure to conduct
a background check. However, for many legal reasons,
it should be noted that the effect of this provision
may be limited. If a volunteer or employee of
an organization sexually molests a child in his/her
care, and if it can be shown that the individual
had been previously convicted somewhere in the
United States of a relevant crime, the organization
may be held liable under the legal theory of negligent
hiring.

ACA recognizes this as a significant issue for
camps. We are working toward a consistent application
of the law across the country. We believe uniform
enforcement among all of the states and quick
and consistent results are essential for this
to be an effective method of protecting children.

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