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Publication > Fingerprinting
Legislation Related to Fingerprinting
Volunteers
Complied in 2001 by By Sharon A. Joyce, Ph.D. (sjoyce@researchresults.org)
National Child Protection Act of 1993, effective
December 20, 1993
Federal legislation giving states
the authority to authorize FBI criminal records checks for unsupervised
child care providers. Child care provider is a person who is employed
or volunteers with a qualified entity. Qualified entity is a public,
private, for-profit, not-for-profit or voluntary organization
or business that provides child care services. The Act requires
states to track child abuse cases. The act provided funding for
the improvement of computerizing and accessing criminal history
files.
The spirit of the legislation
is to allow states to determine the need to access criminal records,
but not legislate that criminal records checks must be conducted.
Thus, states vary on their legislation authorizing access to criminal
records. The Act specifically states that, “A qualified
entity shall not be liable in an action for damages solely for
failure to conduct a criminal background check.
Website address: http://ojjdp.ncjrs.org//pubs/guidelines/contents.html
see Appendix A of the Guidelines
Violent Crime & Law Enforcement Act of 1994,
effective October 1, 1994
Amended the National Child Protection
Act of 1993 to also cover the elderly and disabled. Required the
Attorney General to establish guidelines for screening persons
working with children, elderly and the disabled. Also required
the Attorney General to address the availability, cost, timeliness
and effectiveness of criminal history background checks and recommend
approaches that do not discourage volunteerism.
The Attorney General’s
guidelines on screening persons working with children, the elderly
and the disabled can be found at http://ojjdp.ncjrs.org//pubs/guidelines/contents.html.
These guidelines provide guidance on approaches towards screening
volunteers. The guidelines include a volunteer disclosure affidavit
asking questions related to an individuals criminal history.
Overview of the Attorney General
Guideline
- Identifies triggers for determining
appropriate screening levels
- level of supervision
- level of direct contact
- population being served
Basic Screening
- interview
- verified application
- reference checks
- skills competency
Advanced Screening
- State criminal record check
- FBI criminal record check
- State child abuse registry check
- DMV check
- Sex offender registry check
1996, Corporation for National Service Requires Criminal
History Checks for AmeriCorps Members
In 1996 the Corporation for National
Service required criminal history record checks for AmeriCorps
members or employees who have substantial direct contact with
children or who perform service in the homes of children or individuals
considered vulnerable (children, elderly & disabled).
Volunteer Protection Act of 1997, effective June
18, 1997
Provides liability protection
for volunteers from voluntees/clients under the following conditions:
- the volunteer was acting with
the scope of responsibilities
- the volunteer was properly certified
or authorized by the appropriate authorities
- the harm was not caused by willful
or criminal misconduct, gross negligence, or reckless misconduct.
A voluntee/client may hold a
nonprofit organization or any governmental entity liable for the
actions of a volunteer. A nonprofit organization or governmental
entity may hold the volunteer liable.
Website address: http://www.access.gpo.gov/nara/
(1) choose public law; (2) choose 105th congress; (3) search for
Public Law 105-19
Federal Crime Identification Technology Act of 1998,
effective October 9, 1998
Legislation to upgrade the criminal
history and criminal justice record systems by providing states
with funding to establish, develop, update or upgrade states centralized,
automated criminal history record information systems and automated
fingerprinting identification systems. Authorizes Congress to
spend $250 million each year on crime identification technology.
Website address: http://www.access.gpo.gov/nara/
(1) choose public law; (2) choose 105th congress; (3) search for
Public Law 105-251
Senate Bill 933, effective October 17, 1998
Fingerprints required for volunteers (supervised or not) who
have contact with children in a licensed child care facilities,
licensed family child care home, or foster care setting. Fingerprints
must be submitted before any contact with children or presence
in the facility. A $100.00 civil penalty per violation for failure
to submit fingerprints within the required
time frame. Effective January 1, 1999 FBI checks mandatory for
all new background checks.
Estimated Fingerprinting Costs:
- DOJ Fingerprint Check: $42
- FBI Fingerprint Check: $24
- Child Abuse Index Check: $15
- Livescan Vendor Fee: $14
Website address: http://www.sen.ca.gov/
(1) choose legislation; (2) choose session 1997-1998; (3) type
in SB933
Senate Bill 2194, effective October 17, 1998
Add residential care facilities
for the elderly and chronically ill/ disabled to SB993
Website address: http://www.sen.ca.gov/
(1) choose legislation; (2) choose session 1997-1998; (3) type
in SB2194
Assembly Bill 1659 (AB1659) Clean-Up Bill to SB933,
effective January 1, 1999
Volunteers in childcare centers
or elder care residential facilities are exempt from fingerprinting
if all of the following apply:
- the volunteer is at the facility
during normal waking hours;
- the volunteer is directly supervised
by the licensee or a facility employee with a criminal record
clearance or exemption;
- the volunteer spends no more than
16 hours per week at the facility;
- the volunteer does not provide clients
with assistance in dressing, grooming, bathing, or personal
hygiene;
- the volunteer is not left alone
with clients in care.
Additionally, a student enrolled
or participating at an accredited educational institution shall
be exempt from fingerprinting if:
- the student is directly supervised
by the licensee or a facility employee with a criminal records
clearance or exemption;
- the facility has an agreement with
the education institution concerning the placement of the student;
- the student spends no more than
16 hours per week at the facility; and
- the student is not left alone with
clients in care.
A volunteer who is a relative,
legal guardian, or foster parent of a client in the facility shall
be exempt from the criminal history check requirements.
Website address:
http://www.sen.ca.gov/
(1) choose legislation; (2) choose session 1997-1998; (3) type
in SB2194
Assembly Bill 9, defeated February 7, 2002: died
pursuant to Art. IV, Sec. 10(c) of the Constitution. Introduced
December 4, 2000.
Requires a state criminal records
check for volunteers in public K-12 schools who have direct unsupervised
contact with children. Current volunteers will be required to
submit fingerprints for state criminal records checks immediately,
while new volunteers will be required to submit fingerprints prior
to beginning volunteer service. Thus, volunteers can be placed
while fingerprinting is being processed.
The Bill endorses enabling a
school to request subsequent criminal reporting checks for volunteers.
The Bill requires the school
district or county office of education to pay the applicant charge
or reimburse the charge to the volunteer. Districts will need
to apply to the State Commission of State Mandates for reimbursement
for fingerprinting costs.
Exempts volunteers who are parents,
guardians, grandparents, and siblings of children enrolled at
the school.
This bill was defeated on February
7, 2002, and is currently inactive.
The Bill is sponsored by Ed Chavez
through the Assembly Committee on Education; Keri Bailey is the
Senior Consultant to Ed Chavez on AB9; Keri can be reached at
(o): 916-319-2057 or email: keri.bailey@asm.ca.gov
Website address:
http://www.sen.ca.gov/
then select legislation, year (2001-2002) PRIOR, and type in AB9
under bill number
H.R. 4424 Volunteer Organization Safety Act of 2000,
Introduced May 11, 2000
Congressperson Pete Sessions
is actively seeking methods to have this legislation enacted through
the current 107th congressional session or through a Memo of Understanding
with the Attorney General, John Askcroft.
Provides temporary authorization
for the FBI to perform name-based background checks of volunteers
who work with children, the elderly and disabled. Currently the
FBI can only perform fingerprint based checks. The authorization
for name-based checks would remain in effect until technology
advances to a point that automated fingerprint checks are universally
available for volunteers and a reasonable reduction has occurred
in the cost of the check and length of time required to complete
the check.
Currently public housing can
access criminal histories through name based checks due to a Memo
of Understanding that was reached with Attorney General, Janet
Reno. Under this approach a name based search is first completed,
if a criminal history is detected a fingerprint is required .
If the Memo of Understanding doesn’t work, Congressperson
Sessions will reintroduce a Bill in the 107th Congress. The name-based
FBI database is called the NCIC (National Crime Information Center).
The original HR4424 Bill that
was introduced in the 106th Congress died due to opposition from
the FBI and the Association of State Criminal History Record Repositories
(SEARCH). The FBI and SEARCH are concerned with the reliability
of name-based criminal record searches due to false positive results.
A false positive would occur if an individual was inaccurately
associated with a criminal offense due to an input inaccuracy
such as the spelling of a name.
Tucker Anderson, Staffer to Congressperson
Sessions working on HR 4424, (o): 202-226-8429
Website address:
http://thomas.loc.gov/
select bill text, then select 106 at the top of screen, then type
in HR 4424 and choose the HR 4424 bill from list
HR 4244 National Child Protection Volunteer Screening Assistance
Act of 2000, Introduced April 11, 2000
Legislation to create a National
Center for Volunteer Screening. The Center would serve as a clearinghouse
to process criminal history record checks of volunteers for qualified
organizations. The checks would be provided at no cost to the
organizations or to the volunteers.
Congressperson John Lewis from
Georgia 202-225-3801
Website address:
http://thomas.loc.gov/
select bill text, then select 106 at the top of screen, then type
in HR 4244 and choose the HR 4244 bill from list
General Comments
Criminal records checks should be a part of the screening process,
not a selection criteria. Supervision, avoiding one-on-one contact,
volunteer training, and training on how to identify signs of abuse
all help to limit the potential for incidences and liability.
Criminal history record checks have limitations but they appear
to discourage individuals who have disqualifying criminal history
records.
State name based criminal history record checks take approximately
2-3 weeks and cost $5 to $25 per record check.
FBI records check requires fingerprints. Hard copy fingerprint
processing typically takes 6 weeks and cost $18 to $24 per individual.
Megan’s law for sex offender registry in almost all states.
The sex offenders listing follows the individual to their current
address.
The 106th Congress, 2nd session, stated during discussions of HR
4424 Volunteer Organization Safety Act of 2000 that: “It is
the sense of Congress that to be effective, a background check must
be fast, accurate, cost-effective and performed on everyone having
regular contact with young people in a youth service organization.
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