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Congress has acted at least 28 times since 1965

This is not a failure of legislative attention. It is a failure of statutory design. Most of the 28 statutes require no caregiver background check. Where one does, it is a condition attached to federal funds, and each requirement is confined to a single sector; two major ones are the Adam Walsh Act and the Child Care and Development Block Grant Act.

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Part 1 of 4 · The Broken Patchwork

Fifty states, fifty lists of disqualifying offenses
A check can be run correctly and still produce opposite outcomes

Walk me through it · about three minutes

Twenty-eight laws. Some say you must. Most do not require a check.

Twenty-eight statutes since 1965, in five bands

1974 to 2018. Seven set check conditions on federal funds to states (1997, 2003, 2006, 2008, 2010, 2014, 2018), three of them with limits (an opt-out, an optional program, alternative checks). Two major ones are the Adam Walsh Act (2006), which made the foster and adoptive check fingerprint-based and ended the opt-out in 2008, and the Child Care and Development Block Grant Act (2014), a child care law. The other seven authorize, fund or review.

Sources for this section

Sources: 34 U.S.C. §§40101–40104 (formerly 42 U.S.C. §5119 et seq.); P.L. 105-251; P.L. 109-248; P.L. 113-186; GAO GGD-97-32 (1997), still the authoritative implementation review of the Act. The 28 statutes, with public law numbers and enactment dates, are listed in Supporting material.

Each federal check requirement covers specific programs and settings; outside them, federal law does not require a check.

The two major mandates below each stop at the edge of one sector. The Adam Walsh Child Protection and Safety Act (P.L. 109-248, 2006) requires fingerprint-based criminal-history checks of prospective foster and adoptive parents and child-abuse-registry checks of them and the other adults in the home, and from October 2008 it ended the state opt-out the 1997 Act allowed. Its section 152 carries no appropriation of its own; states may claim allowable costs through the 50 percent Title IV-E administrative match. The Child Care and Development Block Grant Act (P.L. 113-186, 2014) requires an FBI fingerprint check, NCIC and national sex offender registry searches, and state criminal, sex offender and child abuse and neglect registry searches in each state lived in during the past five years, repeated at least every five years, for staff of licensed, regulated or registered child care providers and of providers eligible for block grant funds. Neither reaches faith-based organizations, youth sports, camps, mentoring or private in-home caregivers, except where they provide child care that is licensed, regulated, registered or eligible for block grant funds.

The statute behind national background checks for these three populations leaves it to each state whether to require them.

National Child Protection Act, 1993 · Volunteers for Children Act, 1998

  1. Authorized, not requiredStates may let qualified entities request nationwide checks on people responsible for children, the elderly or individuals with disabilities. No organization is required to run one.
  2. No national list of disqualifying offensesGAO: the Act “does not provide a specific list of disqualifying offenses; rather, each state must make these determinations.”
  3. A liability shield in both directionsA qualified entity is not liable in damages solely for failing to conduct a check, and a state is not liable for an entity’s failure to act on one.
  4. The grant has lapsed$20 million in total, authorized for 1994–1997 to computerize records, then re-authorized for 1999–2002. The $18 volunteer fee cap, added by the 1994 crime act, was repealed in 2018; volunteers may now be charged the actual cost.
  5. 15 business daysAgencies must make reasonable efforts to answer a qualified entity’s inquiry within 15 business days (34 U.S.C. §40102(a)(2)).

Congress removed the downside of not screening. That is a structural disincentive, not an oversight.

Sources: 34 U.S.C. §§40101–40104 (formerly 42 U.S.C. §5119 et seq.); P.L. 105-251; GAO GGD-97-32 (1997), still the authoritative implementation review of the Act.