1. Agencies That Must Report Or Index Child Abuse Crimes

   Section 2(a) of the National Child Protection Act (NCPA) of 1993 requires that an "authorized criminal justice agency" of the state shall report or index child abuse crime information in the national criminal history background check system. The authorized criminal justice agency is the state identification bureau (SIB) in those states where the arresting agencies are required to forward all criminal fingerprint cards and related document submissions (e.g., final dispositions, expungements, and death notices) to the SIB for transmittal to the FBI. Such states are generally referred to as "single-source" states. As of July 1, 1995, the following 42 states met this criteria:

   Alabama Alaska Arizona Arkansas California Colorado Connecticut Delaware * Florida Georgia Idaho Illinois Iowa Kansas

   Maryland Michigan Minnesota Missouri Montana Nebraska Nevada New Hampshire New Jersey New Mexico New York * North Carolina North Dakota Ohio

   Oklahoma * Oregon Pennsylvania South Carolina South Dakota Tennessee Texas Utah Vermont Virginia Washington West Virginia Wisconsin Wyoming

   * States under the National Fingerprint File Program that "index" rather than report child abuse crime information.

   In the nonsingle-source states of Hawaii, Indiana, Kentucky, Louisiana, Maine, Massachusetts, Mississippi, and Rhode Island, and in the District of Columbia and Puerto Rico, each local and state law enforcement agency is the authorized criminal justice agency.

2. Child Abuse Crime Information That Must Be Reported

   Section 2(a) of the NCPA of 1993 was amended by the Violent Crime Control and Law Enforcement Act of 1994 (Crime Control Act) to include the following clarification, "A criminal justice agency may satisfy the requirement of this subsection by reporting or indexing all felony and serious misdemeanor arrests and dispositions." Therefore, those states that are submitting all felony and serious misdemeanor arrest and disposition data to the FBI need not be concerned about submitting crimes against children independently. However, those states not submitting all such data to the FBI are reminded that the reporting or indexing of child abuse crime information in the national criminal history background check system is mandated by the NCPA. As defined in the NCPA, a "child abuse crime" is: "A crime committed under any law of a State that involves the physical or mental injury, sexual abuse or exploitation, negligent treatment, or maltreatment of a child by any person." The NCPA defines an "identifiable child abuse crime case" as "a case that can be identified by the authorized criminal justice agency of the State as involving a child abuse crime by reference to the statutory citation or descriptive label of the crime as it appears in the criminal history record." These definitions are consistent with criminal justice information gathering methodologies in use and contain widely accepted terminology.

3. Method For Reporting Child Abuse Crimes

   The reporting of child abuse crimes will be accomplished by the submission of criminal fingerprint cards and disposition report forms, both of which are used nationally to report offender-specific crime information, including demographic data, details of charges, and fingerprint impressions. The contents on the criminal fingerprint card and disposition report form must include the following information: the arrestee's full name, originating agency identifier (ORI), date of birth, literal terms describing the child abuse crime or charge for which the person has been arrested or has been convicted, and a complete set of fingerprint impressions on the card with any amputations noted. The following data should be included on the fingerprint card and/or the final disposition report form to the extent possible: any known aliases, race, sex, height, weight, eye color, hair color, social security number, scars, marks, tattoos, the signature of the person fingerprinted, statute citation, and the disposition of the charge when known. States may report or index any other information that they believe would be useful in identifying persons arrested for, or convicted of, a child abuse crime in the appropriate information blocks provided on the criminal fingerprint card and disposition report form. An alternate method of submitting final disposition information to the FBI is by magnetic tape. The vast majority of final disposition data from the states is provided to the FBI via magnetic tape submissions.

Section 2(b) of the NCPA mandates that the Attorney General, subject to the availability of appropriations, investigate the criminal history record system of each state and determine for each state a timetable by which the state should be able to provide child abuse crime records including final dispositions on an on-line basis through the national criminal history background check system. As amended by the Crime Control Act, Subsection (2) requires that as a part of each timetable the state:

1. by not later than the date that is five years after the date of enactment of the NCPA, have in a computerized criminal history file at least 80 percent of the final dispositions that have been rendered in all identifiable child abuse crime cases in which there has been an event of activity within the last five years;

2. continue to maintain a reporting rate of at least 80 percent for final dispositions in all identifiable child abuse crime cases in which there has been an event of activity within the preceding five years; and

3. take steps to achieve 100 percent disposition reporting, including data quality audits and periodic notices to criminal justice agencies identifying records that lack final dispositions and requesting those dispositions.

The Bureau of Justice Statistics (BJS) within the Office of Justice Programs (OJP) of the Department of Justice is administering these requirements. In this capacity, BJS conducted a survey of criminal history information systems in each state, and on the basis of the findings in the survey, developed a timetable for each state to meet the goals set by the NCPA. In June 1994, the Attorney General advised each Governor of the timetable applicable to his or her state.

Section 4(b) of the NCPA establishes a grant purpose to help states improve the quality and availability of criminal records. Although the act authorized $20 million, to date no funds have been appropriate for this purpose.

However, funds available under the National Criminal History Improvement Program (NCHIP), another program administered by the BJS, can be used to meet the goals of the NCPA. Under the NCHIP, funds will be made available to each state to help improve its criminal history information and to support the establishment of the National Instant Criminal Background Check System. NCHIP awards will be made to the state agency designated by the Governor to administer NCHIP funds. Funds awarded under the NCHIP may not be used to cover costs associated with conducting background checks pursuant to the NCPA. For further information about the NCHIP or for information relating to state timetables, contact BJS at (202) 307-0759.

1. General Provisions

   Under the National Child Protection Act (NCPA) as amended by the Violent Crime Control and Law Enforcement Act of 1994 (Crime Control Act), a state is encouraged 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 would permit a "qualified entity" to ask an authorized state agency to request a nationwide background check on an applicant provider. 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 an inquiry within 15 business days. The NCPA was enacted to, among other things, encourage states to require nationwide background checks to determine the suitability of a potential child care provider. Section 3(a)(1) of the NCPA was amended by the Crime Control Act to include care providers for the elderly and individuals with disabilities.

2. Background Check Guidelines
   1. The procedures established by a state must require that no qualified entity may request a background check of a provider unless the provider first furnishes a complete set of fingerprints and completes and signs a statement that:
      1. contains name, address, and date of birth appearing on a valid identification document issued by a governmental entity;

      2. the provider has not been convicted of a crime, or if so, furnishes a description of the crime and the particulars of the conviction;

      3. notifies the provider:
         1. that the qualified entity may request a background check;

         2. of the provider's rights (see paragraph 2 below); and

         3. 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. Each provider who is subject to a background check is entitled to:
      1. obtain a copy of any background check report; and

      2. challenge the accuracy and completeness of any such report and obtain a prompt resolution before a final determination is made by the authorized agency.

   3. An authorized agency shall:
      1. upon receipt of a background check report lacking disposition data, conduct research in whatever state and local recordkeeping systems are available in order to obtain complete data; and

      2. 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 convey that determination to the qualified entity.

   4. Any nationwide background check and its results shall be handled in accordance with the requirement of Public Law (Pub. L.) 92-544.

3. Public Law 92-544 Requirements

   The authority for the FBI to conduct a criminal record check for a noncriminal justice licensing or employment purpose is based upon Pub. L. 92-544. Pursuant to Pub. L. 92-544, the FBI is empowered to exchange identification records with officials of state and local governments for purposes of licensing and employment if authorized by a state statute which has been approved by the Attorney General of the United States. The Attorney General's authority to approve the statute is delegated to the FBI by Title 28, Code of Federal Regulations, Section 0.85(j). The standards employed by the FBI in approving Pub. L. 92-544 authorizations have been established by a series of memoranda issued by the Office of Legal Counsel, Department of Justice. The standards are:

   1. The authorization must exist as the result of legislative enactment (or its functional equivalent);

   2. The authorization must require fingerprinting of the applicant;

   3. The authorization must, expressly or by implication, authorize use of FBI records for screening of the applicant;

   4. The authorization must not be against public policy;

   5. The authorization must not be overly broad in its scope; it must identify the specific category of applicants/licensees.

   Fingerprint card submissions to the FBI under Pub. L. 92-544 must be forwarded through the SIB. The state must also designate an authorized governmental agency to be responsible for receiving and screening the results of the record check to the determine an applicant's suitability for employment or licensing.

4. Regulations

   Section 3(c) of the NCPA states that the Attorney General may by regulation prescribe measures as may be required to carry out the purposes of the NCPA, including measures relating to the security, confidentiality, accuracy, use, misuse and dissemination of information, and audits and recordkeeping. Since NCPA background checks are to be handled in accordance with the requirements of Pub. L. 92-544, which was enacted in 1972, the FBI is of the view that the regulations implemented pursuant to Pub. L. 92-544 give adequate guidance. The standards used to approve state statutes for access to criminal history record information (CHRI) under Pub. L. 92-544 and the regulations set out below demonstrate a concern for the proper use, security, confidentiality, etc. of such information. Both Pub. L. 92-544 and Title 28, Code of Federal Regulations (CFR), Section 20.33 provide that dissemination of FBI CHRI outside the receiving governmental department or related agency is prohibited. Further, the exchange of CHRI is subject to cancellation if such unauthorized dissemination is made. Regulations found at Section 50.12 of Title 28 contain additional requirements regarding the use and dissemination of CHRI. Section 50.12 provides, among other things, that:

   The CHRI may be used only for the purpose requested. Officials authorized to submit fingerprints and receive CHRI must notify the individual fingerprinted that the fingerprints will be used to check the criminal history records maintained by the FBI. Officials making the determination of suitability for employment or licensing must provide the applicant the opportunity to complete, or challenge the accuracy of, the information contained in the FBI identification record. These officials should not deny employment or the license based on information in the record until the applicant has been afforded a reasonable time to correct or complete the information, or has declined to do so. If the applicant wishes to challenge the accuracy or completeness of the record, the official must advise the applicant that the procedures to change, correct, or update the record are set forth in Title 28, CFR, Section 16.34.

   A caveat incorporating the above use and dissemination restrictions and challenge requirements is placed on each FBI identification record disseminated for employment and licensing purposes. Further, because updates to the records are made on a continuous basis, an authorized agency should obtain a current background check any time the individual applies for a new job.

5. Fees For Processing Background Checks

   The FBI routinely charges $24 ($22 for billing states) for processing each fingerprint card submission under Pub. L. 92-544. Payment is made either by direct payment or billed to the SIB, depending on arrangements made between the FBI and each SIB, such as the execution of a Memorandum of Understanding for billing. With respect to the user fee for processing the fingerprints of a "volunteer" care provider, Section 3(e) of the NCPA has been amended by the Crime Control Act to read, "In the case of a background check pursuant to a State requirement adopted after the date of the enactment of this Act 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." (underlining added for emphasis) The FBI has interpreted this language to allow both the FBI and the states to charge the $18 or the actual cost, whichever is less. Based on a recommendation from the Department of Justice and for purposes of uniformity and consistency in administering this provision of the NCPA, the FBI has decided to also apply the $18 fee to a volunteer care provider's fingerprints processed under the authority of a state statute adopted before the date of enactment of the NCPA.

   Therefore, it is incumbent upon each SIB to notify in writing the Access Integrity Unit, Programs Support Section, Criminal Justice Information Services (CJIS) Division, if previously approved or future Pub. L. 92-544 statutes relating to individuals applying to provide care to children, the elderly, or disabled persons include "volunteers." If so, that information will be added to our list of approved Pub. L. 92-544 statutes so that the reduced fee for processing the fingerprints of volunteer care providers can be implemented as required by the NCPA.

   It is the contributor's responsibility to ensure that the reason the applicant is being fingerprinted, the state statute citation, and if appropriate, the word "volunteer" are clearly indicated in the "Reason Fingerprinted" block of the card. The CJIS Division's automated system is in the process of being reprogrammed to allow for billing only $18 ($16 for billing states) for "volunteer" care provider submissions. Until the programming is completed, billing statements will be adjusted accordingly. If the contributor of a card fails to indicate that the applicant is a "volunteer," our regular user fee of $24 will be charged for processing the card. The above procedures and fee structure will become effective for fingerprint cards received at the FBI on or after the first day of our next billing period. A new billing period always begins on the first day of each month.

6. Definitions

   For the purposes of the NCPA --

   1. The term "authorized agency" means a division or office of a state designated by a state to report, receive, or disseminate information under this Act.

   2. The term "care" means the provision of care, treatment, education, training, instruction, supervision, or recreation to children, the elderly, or individuals with disabilities.

   3. The term "individuals with disabilities" means persons with a mental or physical impairment who require assistance to perform one or more daily living tasks.

   4. The term "national criminal history background check system" means the criminal history record system maintained by the Federal Bureau of Investigation based on fingerprint identification or any other method of positive identification.

   5. The term "provider" means:
      1. a person who is employed by or volunteers with a qualified entity, owns or operates a qualified entity, or has or may have unsupervised access to children, the elderly, or individuals with disabilities; and

      2. a person who seeks to be employed by or volunteer with a qualified entity, seeks to own or operate a qualified entity or seeks to have or may have unsupervised access to children, the elderly, or individuals with disabilities to whom the qualified entity provides care.

   6. The term "qualified entity" means a business or organization, whether public, private, for profit, not-for-profit, or voluntary, that provides care or placement services for children, the elderly, or individuals with disabilities, including a business or organization that licenses or certifies others to provide care or placement services.

7. Current Status

   There are currently 38 states that have approved child care statutes; 8 states have approved statutes relating to care of the elderly; and 13 states have approved statutes relating to the care of disabled persons. Each SIB may expect to receive inquiries from various care providers, qualified entities, and others with questions concerning the NCPA. The CJIS staff believes that the information in these guidelines will answer most questions. Therefore, any assistance that recipients may provide in making copies of the guidelines available to affected care providers and qualified entities would be appreciated. It may also be helpful if each SIB would make available to interested parties a list of the categories of care providers and corresponding employment and licensing statutes which have been approved by the FBI as meeting the requirements of Pub. L. 92-544.