42 USC 9858f - Criminal background checks

U.S Code last checked for updates: Nov 22, 2024

§ 9858f.

Criminal background checks

(a)

In general

A State that receives funds to carry out this subchapter shall have in effect—

(1)

requirements, policies, and procedures to require and conduct criminal background checks for child care staff members (including prospective child care staff members) of child care providers described in subsection (c)(1); and

(2)

licensing, regulation, and registration requirements, as applicable, that prohibit the employment of child care staff members as described in subsection (c).

(b)

Requirements

A criminal background check for a child care staff member under subsection (a) shall include—

(1)

a search of the State criminal and sex offender registry or repository in the State where the child care staff member resides, and each State where such staff member resided during the preceding 5 years;

(2)

a search of State-based child abuse and neglect registries and databases in the State where the child care staff member resides, and each State where such staff member resided during the preceding 5 years;

(3)

a search of the National Crime Information Center;

(4)

a Federal Bureau of Investigation fingerprint check using the Integrated Automated Fingerprint Identification System; and

(5)

a search of the National Sex Offender Registry established under the Adam Walsh Child Protection and Safety Act of 2006 (42 U.S.C. 16901 et seq.).1

 See References in Text note below.

(c)

Prohibitions

(1)

Child care staff members

A child care staff member shall be ineligible for employment by a child care provider that is receiving assistance under this subchapter if such individual—

(A)

refuses to consent to the criminal background check described in subsection (b);

(B)

knowingly makes a materially false statement in connection with such criminal background check;

(C)

is registered, or is required to be registered, on a State sex offender registry or repository or the National Sex Offender Registry established under the Adam Walsh Child Protection and Safety Act of 2006 (42 U.S.C. 16901 et seq.); ¹ or

(D)

has been convicted of a felony consisting of—

(i)

murder, as described in section 1111 of title 18;

(ii)

child abuse or neglect;

(iii)

a crime against children, including child pornography;

(iv)

spousal abuse;

(v)

a crime involving rape or sexual assault;

(vi)

kidnapping;

(vii)

arson;

(viii)

physical assault or battery; or

(ix)

subject to subsection (e)(4), a drug-related offense committed during the preceding 5 years; or

(E)

has been convicted of a violent misdemeanor committed as an adult against a child, including the following crimes: child abuse, child endangerment, sexual assault, or of a misdemeanor involving child pornography.

(2)

Child care providers

(d)

Submission of requests for background checks

(1)

In general

(2)

Staff members

Subject to paragraph (4), in the case of an individual who became a child care staff member before November 19, 2014, the provider shall submit such a request—

(A)

prior to the last day described in subsection (j)(1); and

(B)

not less often than once during each 5-year period following the first submission date under this paragraph for that staff member.

(3)

Prospective staff members

Subject to paragraph (4), in the case of an individual who is a prospective child care staff member on or after November 19, 2014, the provider shall submit such a request—

(A)

prior to the date the individual becomes a child care staff member of the provider; and

(B)

not less than once during each 5-year period following the first submission date under this paragraph for that staff member.

(4)

Background check for another child care provider

A child care provider shall not be required to submit a request under paragraph (2) or (3) for a child care staff member if—

(A)

the staff member received a background check described in subsection (b)—

(i)

within 5 years before the latest date on which such a submission may be made; and

(ii)

while employed by or seeking employment by another child care provider within the State;

(B)

the State provided to the first provider a qualifying background check result, consistent with this subchapter, for the staff member; and

(C)

the staff member is employed by a child care provider within the State, or has been separated from employment from a child care provider within the State for a period of not more than 180 consecutive days.

(e)

Background check results and appeals

(1)

Background check results

(2)

Privacy

(A)

In general

(B)

Ineligible staff member

(C)

Public release of results

(3)

Appeals

(A)

In general

(B)

Appeals process

The State shall ensure that—

(i)

each child care staff member shall be given notice of the opportunity to appeal;

(ii)

a child care staff member will receive instructions about how to complete the appeals process if the child care staff member wishes to challenge the accuracy or completeness of the information contained in such member’s criminal background report; and

(iii)

the appeals process is completed in a timely manner for each child care staff member.

(4)

Review

(5)

No private right of action

(f)

Fees for background checks

(g)

Transparency

(h)

Construction

(1)

Disqualification for other crimes

(2)

Rights and remedies

(i)

Definitions

In this section—

(1)

the term “child care provider” means a center-based child care provider, a family child care provider, or another provider of child care services for compensation and on a regular basis that—

(A)

is not an individual who is related to all children for whom child care services are provided; and

(B)

is licensed, regulated, or registered under State law or receives assistance provided under this subchapter; and

(2)

(A)

who is employed by a child care provider for compensation; or

(B)

whose activities involve the care or supervision of children for a child care provider or unsupervised access to children who are cared for or supervised by a child care provider.

(j)

Effective date

(1)

In general

(2)

Extension

(3)

Penalty for noncompliance

(Pub. L. 97–35, title VI, § 658H, as added Pub. L. 113–186, § 7, Nov. 19, 2014, 128 Stat. 1990.)

cite as: 42 USC 9858f