Child Care and Child Welfare: Background Checks

Order Code RL32430 CRS Report for Congress Received through the CRS Web Child Care and Child Welfare: Background Checks Updated June 28, 2004 Kendall Swenson Visiting Research Associate Domestic Social Policy Division Congressional Research Service ˜ The Library of Congress Child Care and Child Welfare: Background Checks Summary Recent improvements in information sharing technology and a concern over the safety of America’s children have increased the amount of criminal background checks performed on potential adoptive parents, foster care families, and other people that are in close contact with children such as child care providers and youth program volunteers. These background checks are not for criminal justice purposes, meaning that the people under review are not being investigated for a particular crime, but are performed with the cooperation of law enforcement agencies. While a previous criminal conviction in someone’s past does not always mean that a person is unsuitable to work or live with children, state social service agencies and child care providers use this information as a part of a wider process to help ensure the safety of children served through their organizations. States have considerable flexibility to implement their own laws and procedures for conducting background checks for child care and child welfare purposes. However, federal laws and grant programs provide some assistance and guidance to the states. For example, the National Child Protection Act of 1993 (NCPA) does not mandate that states enact any legislation requiring background checks, but does provide the legal framework for states to require the Federal Bureau of Investigation (FBI) to perform background checks in accordance with any existing state legislation for people that have responsibility for the safety and well-being of children. The Adoption and Safe Families Act (ASFA), requires that a criminal records check be conducted before approving a prospective foster or adoptive parent for a child who is eligible to receive federal foster care maintenance or adoption assistance payments (Title IV-E children). Finally, the Child Abuse Prevention and Treatment Act (CAPTA) has recently been amended to provide that (no later than 2006) states must perform background checks on all adults residing in a prospective adoptive or foster parent household. States vary greatly in the types of persons required to have a background check and the procedures needed to complete each background review. Some states examine only the criminal history records located in their own law enforcement databases, while other states have the FBI perform a criminal history records check that includes information from other federal and state databases. These checks also vary by situation. For example, states often have different background check requirements for potential child care providers and their families than they have for potential foster care and adoptive parents. An important decision each state must make in creating its background check process is whether to require applicants to submit fingerprints or to search criminal history records solely on basic identifying information such as a person’s name, social security number, and date of birth. Law enforcement experts consider fingerprint submissions to be more comprehensive, though sometimes more costly and burdensome, than basic checks. Some local law enforcement agencies have been able to use some federal grant funding from the National Criminal History Improvement Program (NCHIP) to help purchase electronic fingerprinting equipment and implement other data improvement projects. This report will not be updated. Contents Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Federal Legislation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 National Child Protection Act of 1993 . . . . . . . . . . . . . . . . . . . . . . . . . 1 Victims of Child Abuse Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Adoption and Safe Families Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Indian Child Protection and Family Violence Prevention Act . . . . . . . . 3 Child Abuse Prevention and Treatment Act . . . . . . . . . . . . . . . . . . . . . 3 Crime Identification Technology Act of 1998 . . . . . . . . . . . . . . . . . . . . 4 Types of Background Checks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 State and Local Criminal History Checks . . . . . . . . . . . . . . . . . . . . . . . 5 Federal FBI Database Checks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Child Abuse and Neglect Registries . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Fingerprinting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 The Background Check Process . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 State by State Background Check Requirements . . . . . . . . . . . . . . . . . . . . . 10 Foster Care and Adoption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Child Care . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 List of Figures Figure 1. Type of Background Checks in Child Welfare Required for all Applicants (in 49 States) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Figure 2. Example of a Possible Criminal Background Check Process Using Fingerprints Submissions on Ten-Finger Print Cards . . . . . . . . . . . 13 List of Tables Table 1. Background Checks in Child Care: Number of States that Reported Conducting Background Checks on Regulated Providers, by Type of Check and Provider, 1999 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 This report was written by Kendall Swenson, a Presidential Management Fellow on detail from the U.S. Department of Health and Human Services, under the direction of Karen Spar and Emilie Stoltzfus, Domestic Social Policy Division. Child Care and Child Welfare: Background Checks Introduction Recent improvements in information sharing technology and a concern over the safety of America’s children have increased the amount of criminal background checks performed on potential adoptive parents, foster care families, and other people that are in close contact with children such as child care providers and youth program volunteers. These background checks are not for criminal justice purposes, meaning that the people under review are not being investigated for a particular crime, but are performed with the cooperation of law enforcement agencies. The persons required to undergo a background check and the procedures needed to complete each review vary greatly by state but often include a series of searches in state and federal criminal history databases as well as state child abuse and neglect records systems. While a previous criminal conviction does not always mean that a person is unsuitable to work or live with children, state social service agencies and child care providers use this information as a part of a wider process to help ensure the safety of children served through their organizations. Federal Legislation States have considerable flexibility in implementing their own laws and procedures for conducting background checks. However, federal laws and grant programs help guide the way states organize and operate their background check systems. This section is intended to provide an overview of the laws and programs most relevant to the noncriminal background checks usually conducted for child care and child welfare purposes. National Child Protection Act of 1993. The National Child Protection Act of 1993 (NCPA, P.L. 103-209) encourages states to improve the quality and increase the use of their criminal history and child abuse records for child protection purposes. Although the legislation does not mandate that states enact any legislation requiring background checks, it does encourage states to create their own background check process for certain child welfare and child care purposes. It also provides the legal framework for states to require the FBI to perform background checks in accordance with any existing state legislation. In addition, NCPA allows states to establish procedures that mandate checks on prospective employees and volunteers for organizations serving youth, the elderly, and individuals with disabilities. In an effort to increase the usefulness of the information being examined in these background checks, NCPA encourages inter-state information sharing of criminal history records and requires states to submit or index certain child abuse crime information in FBI criminal history record systems. It further mandates that CRS-2 the U.S. Attorney General establish a series of procedures and deadlines for improvements in each state’s criminal history records system. Generally, states satisfy the submission requirements by reporting all felonies and particular misdemeanors to the FBI. The NCPA was further amended by the Violent Crime Control and Law Enforcement Act of 1994 (P.L. 103-322) (Section 320928) to establish a maximum charge by the FBI of $18.00 per background check and in 1998 (P.L. 105-251) to provide that youth-serving volunteer organizations and institutions may contact an authorized state agency to request national criminal fingerprint background checks in those cases where the state lacks regular procedures for requesting such checks. Victims of Child Abuse Act. Enacted as Title XX of the Crime Control Act of 1990, the Victims of Child Abuse Act requires background checks for federal government employees (or employees who work at a facility operated by, or under contract, with the federal government) who provide “child care services” to children under the age of 18. For these purposes, the law defines “child care services” to include child protective services (including investigation of abuse and neglect reports), child (day) care, foster care, residential care, social services, health and mental health care, education, recreational or rehabilitative programs, and detention, correctional, or treatment services. The law further requires that these background checks be based on fingerprints and other identifying information, and that they be conducted through the FBI and through each state’s criminal history records for which an employee lists current or former residence on an employment application. Under the act, federal agencies may deny employment to any individual convicted of “a sex crime, an offense involving a child victim, or a drug felony.” Finally, the act encourages federal agencies and facilities to perform voluntary background checks on volunteers who provide any of the listed child care services and on “adult household members in places where child care or foster care services are being provided in a home.” Adoption and Safe Families Act. The Adoption and Safe Families Act (ASFA, P.L. 105-89) provisions were developed to increase the safety of children placed in foster or adoptive homes and to shorten the amount of time children stay in foster care. As a part of ASFA, Congress mandated that a criminal records check be conducted before approving a prospective foster or adoptive parent for a child who is eligible to receive federal foster care maintenance or adoption assistance payments (Title IV-E children). ASFA does not expressly require that states conduct these checks for prospective foster or adoptive parents of children who are not eligible for Title IV-E payments. However, state criminal background procedures are assessed as part of the U.S. Department of Health and Human Services Child and Family Services Review. Under ASFA, states have considerable flexibility in the types of records checks needed (e.g., one or more of FBI, state, local, child abuse and neglect registry) and the procedures used to finalize each check. However, ASFA does list several criminal offenses that must disqualify prospective foster or adoptive parents of Title IV-E eligible children, if found in the background check process. These offenses include: any felony convictions for child abuse or neglect, spousal abuse, a crime against a child (including child pornography); and for a crime involving violence, CRS-3 including rape, homicide, and sexual assault. In addition, ASFA also requires that final approval be denied for persons that have a felony conviction, within the past five years, for physical assault, battery, or a drug-related offense. ASFA also allows states to go beyond these minimum requirements by denying approval because of other convictions.1 States are eligible to opt-out of these specific ASFA background check mandates. To make this choice, a state must either have its legislature enact a law or have its governor provide written notification to the Secretary of the U.S. Department of Health and Human Services (HHS) that explains the state’s decision to opt-out of the background check requirements and provide an alternative plan to ensure a child’s safety as intended in ASFA. According to the latest data available from HHS (April 2003), nine states had chosen to opt-out of ASFA, although all of these states continued to perform background checks under state mandates.2 In general, states opt-out to avoid the requirement that applicants be automatically rejected if they had a felony conviction of one of the specific crimes listed in the act. Indian Child Protection and Family Violence Prevention Act. The Indian Child Protection and Family Violence Prevention Act (Title IV of P.L. 101630) requires background checks for federal and tribal agency employees that have regular contact with, or control over, American Indian children. The Department of the Interior has interpreted the law to include prospective foster and adoptive parents. The legislation provides some minimum guidelines and requires that an applicant be denied if he or she has been found guilty of or entered a plea of nolo contendere to any felony, or any two or more misdemeanor offenses, under federal, state, or tribal law involving crimes of violence, sexual assault, molestation, exploitation, contact or prostitution, crimes against persons, or offenses committed against children.3 Under the legislation, states and tribal governments retain considerable flexibility in the databases they search and the procedures used to complete each check. According to the American Public Human Services Association, when Title IV-E subsidy payments are provided to a Native American child in tribally licensed or approved foster and adoptive families, ASFA background check requirements must be met in addition to any requirements mandated under the Indian Child and Family Violence Prevention Act.4 Child Abuse Prevention and Treatment Act. Within two years of its enactment, the Keeping Children and Families Safe Act of 2003 (CAPTA, P.L. 10836) requires states to perform background checks for prospective foster and adoptive parents and other adult relatives and non-relatives that reside in the household. The legislation does not specify a process for performing the background checks and does not mandate particular crimes or other findings that must disqualify potential 1 Section 106, ASFA. 2 U.S. Congressional Affairs Office, Department of Health and Human Services. 3 Section 408 of the Indian Child Protection and Family Violence Prevention Act. 4 Rebecca Dunhem and Elizabeth Oppenheim, Understanding Criminal Records, American Public Human Services Association, Washington, DC, Oct. 2002. (Hereafter cited as Dunhem and Oppenheim, Understanding Criminal Records.) CRS-4 applicants. Because all states currently perform some sort of background check on prospective foster or adoptive parents, the law’s most significant impact appears to be its requirement that other adults residing in the household must have background checks. Crime Identification Technology Act of 1998. The 105th Congress enacted the Crime Identification Act of 1998 (CITA, P.L. 105-251) to upgrade criminal history record systems and to improve the ability of law enforcement agencies to share information across jurisdictions. As a part of CITA, Congress continued funding for the National Criminal History Improvement Program (NCHIP), which uses a series of grants to improve the quality, timeliness, and immediate accessibility of criminal history records for both civil and criminal justice purposes. NCHIP grants may be used for a variety of data improvement projects such as: upgrading electronic fingerprinting capacities, integrating criminal history data systems, improving a state’s ability to comply with Section 103(b) of the Brady Handgun Violence Prevention Act (18 U.S.C. 922), and improving participation in the FBI’s Interstate Identification Index (discussed below). In 2000, P.L. 106-177 (Child Abuse and Prevention Enforcement Act) amended NCHIP to specify an additional purpose for these funds to improve the “capability of the criminal justice system to deliver timely, accurate, and complete criminal history record information to child welfare agencies, organizations, and programs that are engaged in the assessment of risk and other activities related to the protection of children, including protection against child sexual abuse, and placement of children in foster care.” Technologies supported by NCHIP grants may assist the background check process for child care and child welfare purposes by speeding up the processing time and reducing the staff needed to complete the background checks in the relevant law enforcement agencies. Most states receive at least some NCHIP funding every year, which totaled approximately $439 million between FY1995 and FY2003.5 Interstate Identification Index (III). CITA also encouraged states to participate fully in the FBI’s Interstate Identification Index (III) system. The III is a national identification index that allows states to operate their own criminal history records repositories, while storing copies of the names and basic identification information of the people in those records in a national FBI database.6 Queries to the III use a person’s name and identification information to search for a FBI indexed record. If found, the record will “point” the inquiring agency to the state or federal agencies that are in possession of those databases, thereby allowing interjurisdictional exchange of criminal history information without requiring the FBI to maintain duplicate copies of the records in a centralized database. The FBI provides records to the III system for federal and foreign offenders as well as persons arrested in the District of Columbia and U.S. Territories. While all states may request criminal history information via the III system, not all states are providing their own records to the system. As of March 2004, 47 states 5 For addition information on the NCHIP program visit [http://www.ojp.usdoj.gov/ bjs/nchip.htm]. 6 U.S. Department of Justice, Office of Justice Programs, Use and Management of Criminal History Record Information: A Comprehensive Report 2001 Update, Dec. 2001. CRS-5 were providing at least some record access to the III, although some states were only partially participating and had not integrated all of their records with the system.7 Records that cannot be provided directly from states’ repositories for III uses are sometimes available to requesting agencies through other federal databases consisting of state record submissions sent to the FBI. However, criminal history records exchanged directly from the state repositories through the III system are sometimes more current than records obtained from FBI duplicate files because information from the state repositories reflect the latest changes in each record’s information. CITA also recognized that existing state policy and legal barriers prevented some states from sharing their records directly with other states through the III for purposes other than criminal justice investigations, including background checks for child care and child welfare. To address this, CITA created the National Crime Prevention and Privacy Compact to regulate the use of the III system for noncriminal justice purposes. Participation in the Compact is not mandatory and requires that it be ratified by a state’s legislature in identical form. Once adopted, the Compact takes precedence over other state policies, and states are able to exchange the most current state records with other agencies authorized through the III system. States that have not ratified the Compact cannot directly provide their criminal history records to other state agencies for noncriminal purposes, although they can provide duplicate records to the FBI, which then can exchange some information in those records with the requesting states. As of March 2004, seven states had ratified the Compact and are providing records to the III for authorized noncriminal uses.8 Types of Background Checks Describing the noncriminal background check process in generic terms is difficult since state governments organize and operate their child protection and child care services in very different ways. However, enough similarities exist across states to describe the basic types of background checks performed and the fundamental procedures needed to complete the process. Although some states perform personal interviews with an applicant’s family or place of employment in some cases, most of the background check process for potential child care providers and foster care and adoptive parents consists of searching state and federal government databases for criminal history records as well as state-controlled child abuse and neglect registries. Every state performs background checks, although some states will not perform all of the types of checks listed below. State and Local Criminal History Checks. The most common type of background check performed for child care and child welfare purposes consists of a 7 U.S. Department of Justice, Federal Bureau of Investigation, Criminal Justice Information Services Division, “Interstate Identification Index (III): National Fingerprint File (NFF) Program, revised Mar. 2004. 8 Many states have ratified the National Crime Prevention and Privacy Compact, but are not yet exchanging records through the III for noncriminal justice purposes because of administrative and technological reasons. Twenty-one states have ratified the Compact: AK, AR, AZ, CO, CT, FL, GA, IA, KS, ME , MN, MO, MT, NC, NH, NJ, NV, OH, OK, SC, and TN. [http://www.search.org/policy/compact/privacy.asp] CRS-6 state database search of its criminal history records. Although states vary on what they store in these systems, the databases normally contain records documenting most felony and some misdemeanor offenses committed within the state. Some states retain only the most basic case information such as the date and purpose of arrest, while other states keep more in-depth information such as the disposition of the case and the sentence served. Some background checks for child care and child welfare issues also examine criminal history databases from city or county law enforcement agencies, but this process may be unnecessary if the state’s main criminal history database is regularly updated by local court systems and law enforcement agencies. Federal FBI Database Checks. While state databases generally contain the most accurate and current data on criminal activity within a state, individual state records systems do not provide information reported by other federal and state law enforcement agencies. Since people may move across state lines, some states require that background checks performed for child care and child welfare purposes utilize the more comprehensive background check systems facilitated through the FBI. These federal checks require fingerprinting and can be used to share certain criminal history information housed in other state and federal databases. The information in these databases includes most of the felony and some misdemeanor criminal records, as well as some information related to a few specific homeland security databases.9 Child Abuse and Neglect Registries. Many substantiated cases of child abuse or neglect do not lead to criminal convictions and may not be included in state and federal criminal history files. Therefore, most states have a central registry for the reporting of certain child abuse and neglect cases that may not have resulted in a criminal conviction. States vary in the way they organize and operate their registries and not all states use the information in the registry during the background check process. At the current time, no national mechanism exists for the inter-state sharing of information stored in state child abuse and neglect registries, although individual states and localities sometimes create their own information sharing agreements. Fingerprinting An important decision each state must make in creating its background check process is whether to require applicants to submit fingerprints or to search criminal history records solely on basic identifying information such as a person’s name, social security number, and date of birth. Law enforcement experts consider fingerprint submissions to be more reliable and comprehensive than basic checks since many criminals use an alias to hide their true identity. In addition, states that do not require fingerprinting are unable to perform FBI background checks for most 9 The FBI background checks described in this report should not be confused with the checks performed to comply with the Brady Handgun Violence Prevention Act, which uses the National Instant Criminal Background Check System (NICS). NICS is specifically designed to perform background checks for transfers of firearms and is not used for child care and child welfare purposes. For additional information on the NICS background check system, see CRS Issue Brief IB10112, Gun Control Legislation in the 108th Congress, by William J. Krouse. CRS-7 child care and child welfare purposes.10 Therefore, background checks that do not include fingerprint submissions will have only minimal information about crimes committed in states other than the one initiating the background check. Many states, however, choose not to require fingerprints for their background checks because the fingerprinting process is usually slower, more expensive,11 and places additional burden on both the agencies performing the check and the applicant. Child care organizations and child protection agencies cite the fingerprint process as a reason for delays in the approval process.12 Unlike background checks that rely on a person’s name and social security number alone, fingerprinting often requires a person to make an additional trip to a law enforcement agency for the printing service. This process may be burdensome for people with busy work schedules or who live in rural areas without a fingerprinting location nearby. In addition, some organizations that are dependent on volunteer support have expressed concern that a lengthy background check process may discourage people from applying for a needed position. Some of the delays and administrative burdens associated with fingerprint-based records checks are reduced when submitted to state and FBI databases electronically (paperless), rather than on 10-finger print cards. Electronic submissions are faster because they do not have to be converted to electronic format before the check can be made. They also reduce some of the errors associated with 10-finger cards such as misprinted or smeared submissions that can cause considerable delays in foster care and adoption placements as well as the hiring of new child care employees. For electronic submissions, people usually visit a local law enforcement agency and are fingerprinted using an optical scanning machine called Livescan. These machines put the fingerprints in electronic format for quick transmission to state and federal crime information centers.13 This potentially can shorten the background check process several days or weeks since the cards no longer need to be physically delivered between agencies. While electronic submissions are generally preferred over 10-finger cards, the large cost of Livescan equipment is the main reason that many local law-enforcement agencies are still using 10-finger print cards. Some local law enforcement agencies have been able to use grant funding from NCHIP and other 10 Exceptions to the fingerprinting requirement are sometimes made for people with serious hand injuries or physical conditions that make fingerprinting difficult. 11 Each FBI background check costs between $18 and $24, although state and local agencies may also charge their own fees for the service. The FBI is allowed to charge a slightly higher fee for states that have just recently passed their state statutes requiring background checks to help cover technological improvement expenses. FBI Congressional Affairs Office, Department of Justice, telephone conversation, Apr. 20, 2004. 12 13 Dunhem and Oppenheim, Understanding Criminal Records Checks. A few states do not have the ability to electronically transmit fingerprints to the FBI even though some law enforcement agencies in those states have Livescan equipment. In these situations, state law enforcement agencies receive the electronic transmissions from the local governments, then print out paper copies of the fingerprints before mailing them to the FBI. For more information on fingerprint submissions see U.S. General Accounting Office, Law Enforcement: Information on Timeliness of Criminal Fingerprint Submissions to the FBI, GAO-04-260, Jan. 2004. CRS-8 sources to help purchase Livescan equipment and improve data integration to decrease transmission time between local, state, and federal law enforcement agencies. The Background Check Process Every step in a background check process varies by state and the reason for the check. Therefore, this section is intended to describe a generic process that an applicant might complete in a typical background check process, but this overview will not apply to all situations. This example assumes that an applicant is required to submit two 10-finger print cards for identification purposes in state and FBI criminal history database systems. For a visual flowchart of this example, see Figure 1 at the end of this paper. The first step in the background check process is usually for a person to go to a local law enforcement agency to be fingerprinted on two separate print cards. Some states require a fee for this service, while others may not. Assuming the person is fingerprinted correctly, the fingerprint cards are then forwarded to the state’s central law enforcement agency, either directly or via local and state social service agencies. Once the fingerprint cards arrive at the state’s criminal history repository, the state usually enters the person’s name, social security number, and fingerprint card data into an identification system and searches for any criminal history records in the system. After the state examines its own criminal history files, the state sends the fingerprints to the FBI if it wants the FBI to look for criminal history records located in other state and federal databases. Some states mail one of the print cards to the FBI, while other states first convert the 10-finger print card into electronic format and digitally transmit it to the FBI. Background check requests electronically submitted to the FBI take on average about two hours to process, whereas requests submitted with 10-finger print cards require an additional five to 10 business days to process.14 Since the fingerprints are submitted to the FBI using a 10-finger print card in this example, the FBI forwards the fingerprint card upon its arrival to a contractor who scans the card and enters the data into electronic format. Once electronically entered into the database, the FBI uses both fingerprint and personal search data information such as the person’s name, date of birth, and social security number to locate any matches in the system. If the FBI receives a record match in its central identification database it takes the necessary steps to locate the criminal history records through the III network. These records are sometimes housed directly in FBI databases and are sometimes located in individual state databases. If a requested record is located in a state that has ratified the National Crime Prevention and Privacy Compact and is exchanging records through the III for noncriminal justice purposes, the record is sent directly to the requesting state from the state that houses 14 In FY2003, the FBI received a total of 17,736,541 fingerprint submissions; 8.6 million (48% of total) of these submissions were for civil purposes. Of these 8.6 million civil submissions, 73% were submitted electronically. For more information see Testimony of Michael D. Kirkpatrick, Assistant Director in Charge, Criminal Justice Information Services Division, Federal Bureau of Investigation, Mar. 30, 2004. [http://www.fbi.gov/congress/ congress04/033004kirkpatrick.htm] CRS-9 the record. If a requested record is located in a state that has not yet ratified the National Crime Prevention and Privacy Compact or is not yet participating in the III for noncriminal justice purposes, the state that houses the record cannot directly send it to the requesting state. However, since states send copies of many of their criminal history records to the FBI, the FBI is often able to send what information it has in its own databases to the requesting state. Once a state’s law enforcement agency receives the records, they are forwarded to the proper caseworkers or administrators in the requesting local social services office. State by State Background Check Requirements Foster Care and Adoption. As previously stated, states vary considerably on both the types of background checks required and the process used to complete the checks. This diversity was documented in a study by the American Public Human Services Association (APHSA) published in October 2002.15 As shown in Figure 1, out of the 49 states that participated in the study, 46 required a state check, 14 required a local check, and 23 required a check in the state’s child abuse and neglect registry for potential foster care and adoptive parents. State policies varied in their requirements for the FBI checks based on whether a person was applying to be a foster care or an adoptive parent. Of the 49 states, 20 required both foster care and adoptive parents to have an FBI check, one required only foster parent applications to be checked, two required only adoptive parent applicants to be checked, and 11 required only applicants that do not meet minimum residency conditions to be checked with the FBI databases. Some states “pre-screen” their applicants and only do a more thorough review if they find something in the original screening that they feel merits further investigation. 15 Dunhem and Oppenheim, Understanding Criminal Records Checks. CRS-10 Figure 1. Type of Background Checks in Child Welfarea Required for all Applicants (in 49 States) Child Abuse & Neglect Registry 23 14 Local 46 State 20 FBI 0 10 20 30 40 50 Number of States Source: Figure prepared by CRS from American Public Human Services Association (APHSA). a. In addition to the 20 states requiring FBI background checks for all foster care and adoptive parent applicants, 14 additional states require FBI checks for some applicants; including one state for only foster parents, two states for only adoptive parents, and 11 states for applicants not meeting minimum residency conditions. Child Care. Background checks involving child care providers and their families also vary by state. The most recent review of these state checks was published in a January 2000 General Accounting Office (GAO) report, which surveyed all 50 states and the District of Columbia on each state’s requirements.16 At the time of the study, GAO noted that state requirements varied by the type of child care provider service. As shown in Table 1, 40 states required a state background check for family child care providers, 35 required a state child abuse and neglect registry check, and 16 required a FBI check in 1999. For group homes, 32 required a state check, 30 required a state child abuse and neglect registry check, and 14 required a FBI check for the provider of the homes. For the directors of child care centers, 40 states required a state check, 32 required a child abuse and neglect registry check, and 16 required a FBI check. A significant part of the background check process in many states includes the requirements regarding the family and coworkers of the provider. At the time of the GAO study, over half of the states required some kind of background check for both the provider and the other adults living or working in the child care unit. A provider’s minor children living in the provider’s home were also required to perform a 16 U.S. General Accounting Office, Child Care: State Efforts to Enforce Safety and Health Requirements, GAO-00-28, Jan. 2000. CRS-11 background check in some states. When performed, these checks often included a state criminal history check as well as a check in the state’s child abuse and neglect registries, but normally did not include a FBI check. Table 1. Background Checks in Child Care: Number of States that Reported Conducting Background Checks on Regulated Providers, by Type of Check and Provider, 1999 State background checks State child abuse registry checks Provider 40 35 16 Provider’s assistant 37 32 13 Provider’s spouse 38 32 12 Provider’s minor children 14 18 1 Other adults living in the provider’s home 37 30 11 Provider 32 30 14 Provider’s assistant 32 28 12 Provider’s spouse 28 25 9 Provider’s minor children 9 14 0 Other adults living in the provider’s home 27 24 9 Center director 40 32 16 Teaching staff 39 29 15 Other nonteaching staff 36 25 12 Types of background checks FBI checks a Family child care Group homesb Centersc Source: Table reproduced from the U.S. General Accounting Office, Child Care: State Efforts to Enforce Safety and Health Requirements, GAO-00-28, Jan. 2000. a. Family child care usually consists of one provider caring for six or fewer children in the provider’s home. b. Group homes usually involve two providers caring for seven to 12 children in the provider’s home. c. Centers usually involves care by a provider in a nonresidential setting such as a school, church, or business. CRS-12 Figure 2. Example of a Possible Criminal Background Check Process Using Fingerprints Submissions on Ten-Finger Print Cards Two fingerprint cards are sent to the state's criminal history repository, either directly from the local law enforcement agency or via state and local social service agencies. Name, social security number, and fingerprint card data are entered into state criminal history repository and processed. FBI conducts search using name, date of birth, social security number, and fingerprint images. FBI forwards card to digital scanning contractors, who scan cards into electronic format. Since, in this example, the state is not electronically submitting fingerprints to the FBI, one fingerprint card is mailed to the FBI. Are previous records found? FBI and state records are returned to the requesting state law enforcement agency. If no record matches are found then the requesting state is notified. Applicant goes to local law enforcement agency and is fingerprinted on 10-finger print cards. No Criminal record checks report is forwarded to proper caseworkers or administrators in field office. Some states have the report first sent through a state's central social service agency before reaching the field office. Yes FBI and state law enforcement agencies gather records. Source: U.S. General Accounting Office, Law Enforcement: Information on Timeliness of Criminal Fingerprint Submissions to the FBI, GAO-04-260, Jan. 2004. and Understanding Criminal Records Checks, by Rebecca Dunhem and Elizabeth Oppenheim, American Public Human Services Association, Washington, DC, Oct. 2002.