States are required to background check child care workers, but many are falling short

Tara Anand for The 19th More than a decade ago, Celia Sims sat in a room with parents whose precious children had died while at day care. Most had been neglected by their caregivers. Some died from injuries, others in their sleep.  Most of the children attended licensed facilities, and at the time, their parents believed that licensing meant providers were safe, that unqualified workers were screened out. But they weren’t.  According to reporting by The 19th, in the early 2010s, there was no federal requirement that child care providers undergo background checks. Fewer than a dozen states required a comprehensive check of criminal, child abuse and sex offender registries — most of the others only checked one, if that. Once these children died, police investigations revealed that providers at their care centers had past convictions for crimes like manslaughter and sexual abuse, Sims said. These people, the parents said, should not have been working in child care, period.  The parents were outraged — and rightly so, Sims remembers thinking. It seemed so unnecessary. So preventable.  “After that, you can’t just close your eyes and walk away,” said Sims, who was then a senior staffer for former Sen. Richard Burr, a North Carolina Republican. She got to work.  Burr and then-Sen. Barbara Mikulski, a Democrat from Maryland, worked with members of the child care advocacy community to draft bipartisan legislation that would, for the first time,  establish national safety standards for child care. It would ultimately make its way into the 2014 reauthorization of the Child Care and Development Block Grant (CCDBG), the national funding mechanism. States use the money they receive from the grant to reduce the cost of care for low-income children and improve that care by implementing safety and licensing requirements. But to get the money — at least in theory — states must abide by CCDBG rules. And those rules would be stricter than ever. The reauthorization introduced eight background check requirements that state agencies must run on child care job applicants: two federal checks — the FBI fingerprint and sex offender registries; three state checks — the criminal history, sex offender and child abuse registries; and three more interstate checks of the same state registries in any state where a provider lived during the previous five years. All of these checks were meant to screen out people with a history of crimes like child abuse, assault or endangerment. As part of the new CCDBG rules, states would also be required to post inspection reports online and collect data on serious incidents. It was a statement of values: The government was saying that this was the nation’s standard for child care, no matter where a program was located.  States had until 2018 to come into compliance. But 10 years after the law took effect, many states are still failing to uphold at least one of its components.  According to a 2022 report to Congress analyzing the issue, at that time 27 states failed to conduct at least some, if not all, of the checks and hiring practices required by the law. Nineteen allowed staff to start working with children before background checks were completed. Nearly all of the states had been hampered by old technology systems, state bureaucracy and databases that range from incomplete to downright inaccurate. It’s unclear where states stand today. The federal Office of Child Care, the regulatory agency that is meant to oversee states’ progress on fixing these problems, told The 19th that only three states had updated some of their policies since the report was published (New Hampshire, for example, no longer allows staff to start work before checks clear), but all 27 remain out of compliance because they do not yet conduct every required check. Yet several states disputed the agency’s determination and provided detailed documentation on their background check procedures, opening the possibility that even the regulatory agency can’t say for certain where states are falling short.  The winding, chaotic path toward fixing these issues has baffled child care advocates. “I have not been able to understand why, in some states, this hasn’t been a big deal,” said Sims, who went on to found The Abecedarian Group, a child care and education consulting agency. But it is a big deal. Background checks are a critical safety requirement in most jobs, but especially when it comes to safeguarding small children who may not be able to express when something has gone wrong. Yet the haphazard enforcement of these rules means that, in some states, barriers to child care jobs are too high, while in others they are not high enough. States with the most stringent requirements have made it more difficult for day care providers to hire workers, and for people to join a workforce of much-needed caregivers. That’s creating additional barriers for in-home care providers, who are disproportionately women of color and are often the most accessible caregivers in low-income communities. In states where the systems to run the checks are still not meeting federal standards, difficult questions remain about whether the screening mechanism meant to shield kids from injury, abuse and even death is functioning as it should. A decade later, no one can yet quite say what the right balance is between protecting children and protecting the child care sector. “You never want a child to be hurt on your dime — it is a terrible, terrible thing. If we didn’t do everything possible to protect every child, we have fallen down on our job,” said child care expert Danielle Ewen. “If you don’t have the systems in place to keep kids safe, who are you actually protecting and who are you hurting?” At the root of this snarl is the reality that while the federal government made the rule, 50 different states have to carry it out. Each does it in their own way, with procedures that are often incompatible. For example, in 2014, interstate checks were added as a commonsense safeguard. Policymakers wanted to ensure caregivers didn’t hop from job to job in different states, evading screening along the way, particularly in areas like Washington D.C. and Virginia, where workers may live in one state but work in another. But over time, those checks have come to illustrate why the system itself is broken.  Eleven states didn’t run interstate checks at all, the 2022 report found. Nine didn’t respond to other states’ requests. Some checks can’t be run because of simple — and mystifying — bureaucratic reasons: One state accepts credit card payments and the other doesn’t, for example.  States also have differing laws about what information they can share across state lines, and with what agencies. After a request is submitted, states can decide whether to provide all the records they hold on a person, only conviction information, or simply to give a “yes” or “no” determination as to whether that person is eligible to work in child care based on their local laws.  That matters because states have different thresholds for what constitutes an offense that would prohibit someone from working with children. For example, a teenager who gets arrested for urinating in public might be considered a sex offender in one state, but not another. When that teenager applies for a job in a new state, their background check might indicate that yes, they have been arrested for a sex offense — but not give any context about what it was. Tribes are also subject to the requirements of CCDBG, but none of them were given legal authority through the 2014 law — or any other, for that matter — to independently run federal background checks. To get around that, some tribes have had to ask states to submit requests on their behalf, creating the same problem: Child care workers may be disqualified based on state rules instead of tribe rules.  Much of the information in the abuse registries is also incomplete or unreliable. The 2022 report to Congress, which was put together by an interagency task force, found that some states include unsubstantiated abuse cases as well as substantiated ones. That means people could be disqualified from working even if the allegations against them were found to have had no merit.  Domestic violence survivors have particularly suffered as a result. In some states, they show up in registries not because they caused the abuse, but because an investigator determined that they failed to protect a child from the perpetrator or from witnessing the violence. “Consequently, victims of domestic violence can remain on [abuse] registries for years, regardless of whether the individual themselves would be unsafe to provide care in a child care program,” the report found.  Experts have also questioned the racial and economic biases of the registry system, especially when it comes to flagging child neglect. About 75 percent of all child welfare cases are the result of neglect, not violence, and about half of states define neglect as a failure to provide basic needs. Caregivers living in poverty, the majority of whom are people of color, may get flagged simply because they’re unable to find affordable housing, for example.  “How much do we trust the gatekeeping mechanism to be fair and equitable?” asks Gina Adams, a child care expert at the Urban Institute who has studied the racial disparities inherent in background checks for child care. “The challenge is that, to the extent that it finds true situations of child abuse or child risk, it is an important mechanism to protect children — so I strongly support that.”   “However,” Adams continued. “I worry that because of inequitable policing, it may be also keeping out a whole bunch of people who should not be kept out.” These inefficiencies have put a heavy burden on child care providers, who have seen how time consuming and burdensome it can be to run background checks, and how the wait can mean they lose staff to other employers. And they’ve also wondered: How much are the background checks keeping out people who want to — and should — work in care? How often are they letting the wrong people through? Just last year in New York City, a 1-year-old died of a fentanyl overdose at a day care that was a front for a drug operation. The providers had passed background checks. Reports also revealed the city had a backlog of 140 child care background checks at the time.  In Washington state, provider Susan Brown has been wrestling with this question after 35 years in the child care business. As part of the federal law, prospective staff who pass a fingerprint check — either of the federal FBI registry or the state criminal history registry — are allowed to start working while their other checks are being completed. But Washington is more restrictive: Nobody can work until they pass the five federal and state checks. For Brown’s employees, the drive to just get their fingerprints taken can take hours roundtrip. The entire background check process can take up to a month, she said. Why would a worker wait that long when they can get a job tomorrow at a fast food restaurant and get paid about the same wages? “Child care providers can’t afford to pay them until they’re in the classroom,” said Brown, the president and CEO of Kids Co., a chain that provides child care services across Seattle. And she pointed to another problem: Day cares have been short-staffed since the pandemic, and that’s limiting how many classrooms can be open and how many students can be enrolled. “Now with the crisis being what it is, because no one has any extra staff, you can’t even enroll kids to cover the wages of the person.” Brown also questions why so many requirements have been imposed on child care providers, and not people in similar professions, like teachers. “We’ve had, over the years, the situation where we tried to hire public school teachers and they didn’t pass the background check,” Brown said. (In Washington, teachers need to only pass two checks — an FBI check and a state patrol check.) The racial disparity is undeniable, Brown said. Women of color are overrepresented in the child care workforce and also face more scrutiny to enter jobs that are among the lowest paid in the country. Meanwhile, the majority of the teaching workforce is White women.  In a January letter to the state, signed by more than 300 child care providers, Brown wrote: “This disparity is not only unjust, but perpetuates systemic racism within our regulatory framework. Washington State’s current background check process magnifies the inequity by removing the possibility of beginning supervised work after completing a fingerprint background check, as outlined in federal requirements.”  In Washington, the state performs the five federal and in-state background checks together. Changing the process to do just the fingerprint checks first, so workers can start sooner, “would take a lot of resources and time to develop,” because all the results are currently submitted as one package, said a spokesperson for the Washington Department of Children, Youth, and Families. “We made the decision to comply with federal regulations by requiring the completion of all background check components for this reason.” It takes about eight days on average to complete the checks once fingerprints are submitted, according to Washington state’s most recent 2024 data.  Home-based providers feel the inequity of these checks most directly, because not only do these workers need to be background checked, but so does every adult who lives in the home.  In-home child care is for many low-income families the only viable option, and it’s often run by women of color — women whose families are more likely to live intergenerationally and to come into contact with the criminal justice system or the immigration system.  “It deters folks from becoming licensed,” said Natalie Renew, the executive director of Home Grown, which works to improve home-based child care. “They perceive risk.”  But what happens when states are also too accommodating? The risk is that children could be put in the care of harmful or negligent people — the exact situations the federal requirements were designed to eradicate. That was the problem the Congressional task force was meant to help solve. Previous reports from 2022 and 2021 had concluded that numerous states fell short of requirements. But the task force’s version, published by the Department of Health and Human Services, was the first to try to quantify which states were out of compliance, and why. The Office of Child Care then took on studying each state’s individual challenges and creating a plan to fix them.  Some states do seem to be lagging. Mississippi, for example, doesn’t check the national sex offender registry, a spokesperson for the state Department of Health told The 19th. Still, the state refutes the 2022 report, which noted that Mississippi did not have policies in place to conduct any of the checks as required by the 2014 law. The Mississippi spokesperson said that  the information was dated. When The 19th asked the Office of Child Care whether any of the information in the 2022 report was outdated, it listed only three states as having made improvements since the report was published, though it considers all 27 to still be out of compliance. Mississippi was not on the list. (The states were New Hampshire, Alabama and Washington.) In fact, several states disputed the Office of Child Care’s determinations. The 19th reached out to officials in five states that had significant issues flagged in the 2022 report, and which the federal agency still considers to be out of compliance. Many said those issues had either been partially or completely rectified. For example, according to the report, West Virginia only runs one of eight required checks. But Whitney Wetzel, a spokesperson for the West Virginia Department of Human Services, told The 19th that determination “should not be considered current.”  Wetzel said the department “is confident that it is compliant with all statutory and regulatory background check requirements,” and provided a list of the checks performed, including the FBI fingerprint check and national sex offender check, as well as the in-state criminal, sex offender and abuse registries.  New Jersey was flagged in the report for failing to run checks on a sub-group of providers, those who are license-exempt, but a spokesperson for the state Department of Human Services confirmed to The 19th that it has been running checks on those providers since mid-2021. Other states are in more of a gray area. According to the agency, Alabama only recently created policies to run in-state, federal and interstate checks, and remains out of compliance with other aspects of the background check law. However, a spokesperson for the Alabama Department of Human Services told The 19th: “All checks required under the Child Care and Development Fund rules are performed,” and the discrepancy is only in how the federal office would like the state to structure the process. Alabama is in the process of updating its background check procedures, but the current system “still covers all the required checks,” the spokesperson wrote.  Vermont was the only state flagged in the 2022 report for allowing staff to start working with children unsupervised before fingerprint background checks were cleared. But the deputy commissioner for the state’s child development division, Janet McLaughlin, told The 19th that while the state does allow new staff to start working before those checks are finalized, that work is supervised. That is, however, still out of compliance with the federal rule. The Office of Child Care did not respond to The 19th’s requests to clarify the discrepancies between its records and the states’ assertions. But an official from the Administration for Children and Families, which oversees the agency, told The 19th that the agency worked with state child care agencies and their partners to create plans to identify what staffing, technology and infrastructure investments they’d need to come into compliance.  The agency went through an intensive process to document each state’s background check policies, the official said, and that study revealed gaps.  But now, because of the disagreements between states and the agency,  it is hard to say how close each has come to filling them. All of this begs the question: If the regulatory agency that oversees the states could be wrong, how will the problem ever get fixed? The more time that goes by, and the longer states have been out of compliance, the more states have also started to question whether what is being asked of them is even doable, Ewen said. She was the director of the Child Care and Early Education team at the Center for Law and Social Policy when the CCDBG rules were being crafted.  “If you have a system where people start to believe that you can’t achieve the end goals, they are not incentivized to try. They’re more incentivized to try and go to Congress and say, ‘This doesn’t work’ instead of going to their state leaders and saying, ‘We’re gonna get dinged for this in an audit,'” Ewen said.  Linda Smith, the former executive director of Child Care Aware, the advocacy organization whose research was critical to the creation of the safety standards, said the federal government has long been too lenient with the states. In her view, it’s past time that the issue be resolved. “These are some of these things that if you want to do it — you do it,” Smith said. “I don’t think there was ever any excuse for not doing them. We are talking about the basic safety of children who can’t talk.”   Yet the 2022 report — and the fact that the Office of Child Care has not credited any state with coming into full compliance since it was issued — pointed out some uncomfortable truths. Yes, some states have delayed compliance. And yes, some tried but faced truly significant challenges. It’s also clear by now, a decade later, Sims said, that “we got some things wrong in the statute.”  The abuse registries were a “mess,” she said. And some of the things that seemed common sense, like interstate background checks, turned out to be much more complicated than anyone had realized.  Grace Reef, then the chief of policy at Child Care Aware who conducted the initial research on the issues with background checks, said the intention behind the law was sound: “to help protect kids and give parents some peace of mind,” she said.  But they were operating with limited information about the quality of the data in the registries and the state laws that would make it difficult, in practice, to conduct all the checks they felt were important. “We had trouble trying to figure out how to structure language,” she recalled. “You do the best you can.”  Advocates insist there has to be a middle ground. And changes are coming.  This year, for the first time, states will be required to answer detailed questions in their state child care plans regarding the remaining obstacles they face with background checks. Each state needs to submit their plan, a roughly 300-page document that outlines how its system works, by July 1.  At the state level, advocates like Lorena Garcia, the CEO of the Colorado Statewide Parent Coalition, are working to ensure that her state narrows the list of offenses that would disqualify someone from working. Garcia works with what are known as family, friend and neighbor providers: registered but unlicensed in-home providers who also need to undergo checks, but might be hesitant to do so because they live with people who have some kind of criminal record or because they are in mixed immigration status households. She wants to make sure only offenses that would affect the safety of children are counted.  To address the interstate checks, Cindy Mall, the senior program director of the California Child Care Resource & Referral Network, sees the National Fingerprint File (NFF) as the most obvious solution. Twenty-four states participate in the FBI-maintained fingerprint database, which makes performing interstate checks a relatively simple experience. If all states were a part of it, more could come into compliance, Mall said — including California, which the report currently lists as out of compliance on performing the national sex offender registry check and the three interstate checks.   For her, the issue comes down to a question of resources. It’s not enough to say something is a priority without the support to make it happen. In 2022, President Joe Biden tried to pass a $400 billion child care plan that would have given states funding they could have used to improve their systems and increase staffing. But that effort ultimately failed after Sen. Joe Manchin, the Democrat from West Virginia, withdrew support from the package saying it was too costly and expansive. The task force that studied the background checks came to a similar conclusion. Even if the states followed every recommendation the group laid out, they wrote, “full implementation of the current array of checks is unlikely without major additional fiscal investment and changes to state laws not addressed in this report.”  “It comes down to money,” Mall said. “Money is staffing, money is resources, money is databases.”  It also comes down to political will. Burr and Mikulski have since left the Senate and few champions remain. But the problems linger. Since the pandemic, child care as an industry has been on life support, kept alive through a one-time federal investment that allowed states and programs to get the resources they needed to improve their systems.  But that money was temporary — the needs aren’t. Safety remains as important as ever. “Ten years into this,” Reef said, “we ought to have sufficient information in a bipartisan way, not to make it a partisan issue, but to make sure the law works as intended by commonsense approaches. I think that’s what’s needed.” This story was produced by The 19th and reviewed and distributed by Stacker Media.