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Seven documented failure modes

Independent oversight bodies converge on the same conclusion. Each failure below is documented by a government audit or report, a statute’s own text, an investigation or a survey, and each has a matching answer in Part 4.

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Part 2 of 4 · The Broken Patchwork

One check, on one day, on a name
FBI Rap Back monitoring exists, for legally authorized users only

Walk me through it · about three minutes

Seven ways a correctly run check protects nobody.

Seven failure modes · one system · five answered by technology today, two by Congress

Structural · No universal federal requirement to screen. A youth sports league, a church, a camp or a family hiring a nanny may screen. No federal law requires all of them to, and federal rules require checks only in specific programs. Whether a check is required depends on the laws and program rules that apply.

Sources for this section

Sources: 34 U.S.C. §40102; GAO GGD-97-32; ACF, 45 CFR 98.43; 42 U.S.C. §9858f(c) and §671(a)(20); CRS R47312 (Dec. 2024); The Boston Globe and ProPublica, CAPTA compliance survey (Dec. 2019); U.S. Customs and Border Protection, Chicago (July 2020); HR.com and PBSA, background screening survey (Aug. 2021); FBI Next Generation Identification, Rap Back Service; GAO-14-42 (2014); HHS OIG, OEI-07-09-00110 (2011); Virginia State Crime Commission (Oct. 2018); U.S. Court of Appeals for the Third Circuit, Boy Scouts of America bankruptcy opinion, May 2025.

Eight figures behind the modes, each from a government report or a survey.

The figures behind the modes

Counted by the auditors, with their dates.

  1. 01
    03 · A state-records check required
    43jurisdictions, including D.C., in HHS OIG’s 2009 review of nursing-facility staff requirements (report, 2011)sourced
  2. 02
    03 · Also an FBI check
    10of those 43 jurisdictionssourced
  3. 03
    03 · No state criminal-check requirement
    8states, for nursing-facility staff (2009 data, OIG 2011)sourced
  4. 04
    05 · Full CCDBG compliance, 2022
    Fewer than halfof states, territories and tribes (Congressional Research Service, 2024)sourced
  5. 05
    05 · Five CAPTA provisions met
    0agencies, of the 49 states, D.C. and Puerto Rico surveyed in 2019 (Boston Globe and ProPublica)sourced
  6. 06
    06 · Organizations that recheck
    19%of organizations surveyed worldwide said they check again after hire (HR.com and PBSA, 2021)sourced
  7. 07
    07 · Counterfeit licenses seized
    19,888counterfeit U.S. driver’s licenses at one Chicago mail facility in the first half of 2020 (CBP)sourced
  8. 08
    07 · Offenses not on records
    751,154at least, held in Virginia’s “Hold File” in 2018 and not applied to criminal histories; 90% lacked fingerprintssourced

Information that exists but cannot move is functionally information that does not exist.

Modes 03, 05 and 07 as first written

State-by-state fragmentation. Nursing facilities have had federal quality standards since 1987. When HHS OIG reviewed state requirements in 2009 (report, 2011), 43 jurisdictions, D.C. among them, required a criminal check against state records, 10 of those also required an FBI check, and 8 states required no criminal background check for nursing-facility staff. Teacher screening differs by state: in GAO’s 2013 survey, 46 of the 50 states and D.C. required checks for public school job applicants.

Non-compliance even where mandates exist. As of 2022, fewer than half of states, territories and tribes were in full compliance with the CCDBG background-check requirements (Congressional Research Service, 2024). A 2019 Boston Globe and ProPublica survey of 49 states, D.C. and Puerto Rico found not one agency fully compliant with five of CAPTA’s 27 provisions. Federal screening duties are enforced through funding risk, not through evidence that a specific person was screened before being given access. A mandate on paper is not a check in practice.

Identity fraud and cross-jurisdiction silos. Shared names, aliases and stolen or synthetic identities all defeat a name-and-date-of-birth match, and counterfeit documents arrive by the thousand: in the first half of 2020, CBP officers at one Chicago mail facility seized 19,888 counterfeit U.S. driver’s licenses. The records are incomplete too: Virginia’s State Crime Commission reported, from State Police data, at least 751,154 offenses in the state’s “Hold File” in 2018 that had not been applied to criminal histories; 90% lacked fingerprints. Clearances and disqualifications do not automatically travel, and state rules differ, so a person barred in one state can be cleared under the next state’s rules.

Nearly one in five nurse aides with a substantiated finding of abuse, neglect or misappropriation had a prior conviction on record.

In a 2011 report, the HHS Office of Inspector General had the FBI run name-based checks on 35,286 employee names from 256 Medicare-certified nursing facilities, as of June 1, 2009. A criminal conviction is not a disqualifying offense, and many of the convictions found were minor and unrelated to patient care; the honest reading is that facilities had very limited visibility into the histories of people they had already hired. The third figure is the one that matters: nearly one in five nurse aides with a substantiated finding of abuse, neglect or misappropriation in 2010 had a criminal conviction dated before the finding.

92

of nursing facilities employed at least one person with at least one criminal conviction

5

of all nursing-facility employees had at least one conviction

19

of nurse aides with a substantiated abuse or neglect finding already had a prior conviction on record

HHS OIG, Nursing Facilities’ Employment of Individuals with Criminal Convictions, OEI-07-09-00110 (March 2011), for the facility and employee figures; HHS OIG, OEI-07-10-00422 (October 2012), for the nurse-aide finding: 300 of 1,611 aides with a substantiated finding had a prior conviction. This is a verification, monitoring and information-sharing problem, not an intelligence-gathering one.