Be it enacted by the General Assembly of Virginia:
1. That §§15.2-914, 16.1-333.1, 19.2-389, 19.2-392.02, 22.1-296.3, 32.1-126.01, 32.1-162.9:1, 37.2-314, 37.2-408.1, 37.2-416, 37.2-506, 63.2-901.1, 63.2-1601.1, 63.2-1717, 63.2-1719, 63.2-1720, as it is currently effective and as it shall become effective, 63.2-1720.1, as it shall become effective, 63.2-1721, as it is currently effective and as it shall become effective, 63.2-1721.1, as it shall become effective, and 63.2-1722 through 63.2-1726 of the Code of Virginia are amended and reenacted as follows:
§15.2-914. Regulation of child-care services and facilities in certain counties and cities.
Any (i) county that has adopted the urban county executive form of government, (ii) city adjacent to a county that has adopted the urban county executive form of government, or (iii) city which is completely surrounded by such county may by ordinance provide for the regulation and licensing of persons who provide child-care services for compensation and for the regulation and licensing of child-care facilities. "Child-care services" means provision of regular care, protection and guidance to one or more children not related by blood or marriage while such children are separated from their parent, guardian or legal custodian in a dwelling not the residence of the child during a part of the day for at least four days of a calendar week. "Child-care facilities" includes any commercial or residential structure which is used to provide child-care services.
Such local ordinance shall not require the regulation or licensing of any child-care facility that is licensed by the Commonwealth and such ordinance shall not require the regulation or licensing of any facility operated by a religious institution as exempted from licensure by §63.2-1716.
Such local ordinances shall not be more extensive in scope than comparable state regulations applicable to family day homes. Such local ordinances may regulate the possession and storage of firearms, ammunition, or components or combination thereof at child-care facilities so long as such regulation remains no more extensive in scope than comparable state regulations applicable to family day homes. Local regulations shall not affect the manner of construction or materials to be used in the erection, alteration, repair or use of a residential dwelling.
Such local ordinances may require that persons who provide
child-care services shall provide certification from the Central Criminal
Records Exchange and a national criminal background check, in accordance with
§§19.2-389 and 19.2-392.02, that such persons have not been convicted of any
offense involving the sexual molestation of children, the physical or sexual
abuse or rape of a child, or any offense identified barrier
crime defined in § 63.2-1719 19.2-392.02, and such ordinances
may require that persons who provide child-care services shall provide
certification from the central registry of the Department of Social Services
that such persons have not been the subject of a founded complaint of abuse or
neglect. If an applicant is denied licensure because of any adverse information
appearing on a record obtained from the Central Criminal Records Exchange, the
national criminal background check, or the Department of Social Services, the
applicant shall be provided a copy of the information upon which that denial
was based.
§16.1-333.1. Written findings necessary to order that minor is emancipated on the basis of intent to marry.
The court may enter an order declaring such a minor who desires to get married emancipated if, after a hearing where both individuals intending to marry are present, the court makes written findings that:
1. It is the minor's own will that the minor enter into marriage, and the minor is not being compelled against the minor's will by force, threats, persuasions, menace, or duress;
2. The individuals to be married are mature enough to make such a decision to marry;
3. The marriage will not endanger the safety of the minor. In
making this finding, the court shall consider (i) the age difference between
the parties intending to be married; (ii) whether either individual to be
married has a criminal record containing any conviction of an act of violence,
as defined in §19.2-297.1, or any conviction of an offense set forth
a barrier crime, as defined in § 63.2-1719 or 63.2-1726
19.2-392.02; and (iii) any history of violence between the parties to be
married; and
4. It is in the best interests of the minor petitioning for an order of emancipation that such order be entered. Neither a past or current pregnancy of either individual to be married or between the individuals to be married nor the wishes of the parents or legal guardians of the minor desiring to be married shall be sufficient evidence to establish that the best interests of the minor would be served by entering the order of emancipation.
§19.2-389. Dissemination of criminal history record information.
A. Criminal history record information shall be disseminated, whether directly or through an intermediary, only to:
1. Authorized officers or employees of criminal justice agencies, as defined by §9.1-101, for purposes of the administration of criminal justice and the screening of an employment application or review of employment by a criminal justice agency with respect to its own employees or applicants, and dissemination to the Virginia Parole Board, pursuant to this subdivision, of such information on all state-responsible inmates for the purpose of making parole determinations pursuant to subdivisions 1, 2, 3, and 5 of §53.1-136 shall include collective dissemination by electronic means every 30 days. For purposes of this subdivision, criminal history record information includes information sent to the Central Criminal Records Exchange pursuant to §§37.2-819 and 64.2-2014 when disseminated to any full-time or part-time employee of the State Police, a police department or sheriff's office that is a part of or administered by the Commonwealth or any political subdivision thereof, and who is responsible for the prevention and detection of crime and the enforcement of the penal, traffic or highway laws of the Commonwealth for the purposes of the administration of criminal justice;
2. Such other individuals and agencies that require criminal history record information to implement a state or federal statute or executive order of the President of the United States or Governor that expressly refers to criminal conduct and contains requirements or exclusions expressly based upon such conduct, except that information concerning the arrest of an individual may not be disseminated to a noncriminal justice agency or individual if an interval of one year has elapsed from the date of the arrest and no disposition of the charge has been recorded and no active prosecution of the charge is pending;
3. Individuals and agencies pursuant to a specific agreement with a criminal justice agency to provide services required for the administration of criminal justice pursuant to that agreement which shall specifically authorize access to data, limit the use of data to purposes for which given, and ensure the security and confidentiality of the data;
4. Individuals and agencies for the express purpose of research, evaluative, or statistical activities pursuant to an agreement with a criminal justice agency that shall specifically authorize access to data, limit the use of data to research, evaluative, or statistical purposes, and ensure the confidentiality and security of the data;
5. Agencies of state or federal government that are authorized by state or federal statute or executive order of the President of the United States or Governor to conduct investigations determining employment suitability or eligibility for security clearances allowing access to classified information;
6. Individuals and agencies where authorized by court order or court rule;
7. Agencies of any political subdivision of the Commonwealth, public transportation companies owned, operated or controlled by any political subdivision, and any public service corporation that operates a public transit system owned by a local government for the conduct of investigations of applicants for employment, permit, or license whenever, in the interest of public welfare or safety, it is necessary to determine under a duly enacted ordinance if the past criminal conduct of a person with a conviction record would be compatible with the nature of the employment, permit, or license under consideration;
7a. Commissions created pursuant to the Transportation District Act of 1964 (§33.2-1900 et seq.) of Title 33.2 and their contractors, for the conduct of investigations of individuals who have been offered a position of employment whenever, in the interest of public welfare or safety and as authorized in the Transportation District Act of 1964, it is necessary to determine if the past criminal conduct of a person with a conviction record would be compatible with the nature of the employment under consideration;
8. Public or private agencies when authorized or required by federal or state law or interstate compact to investigate (i) applicants for foster or adoptive parenthood or (ii) any individual, and the adult members of that individual's household, with whom the agency is considering placing a child or from whom the agency is considering removing a child due to abuse or neglect, on an emergency, temporary, or permanent basis pursuant to §§ 63.2-901.1 and 63.2-1505, subject to the restriction that the data shall not be further disseminated to any party other than a federal or state authority or court as may be required to comply with an express requirement of law;
9. To the extent permitted by federal law or regulation, public service companies as defined in §56-1, for the conduct of investigations of applicants for employment when such employment involves personal contact with the public or when past criminal conduct of an applicant would be incompatible with the nature of the employment under consideration;
10. The appropriate authority for purposes of granting citizenship and for purposes of international travel, including, but not limited to, issuing visas and passports;
11. A person requesting a copy of his own criminal history record information as defined in §9.1-101 at his cost, except that criminal history record information shall be supplied at no charge to a person who has applied to be a volunteer with (i) a Virginia affiliate of Big Brothers/Big Sisters of America; (ii) a volunteer fire company; (iii) the Volunteer Emergency Families for Children; (iv) any affiliate of Prevent Child Abuse, Virginia; (v) any Virginia affiliate of Compeer; or (vi) any board member or any individual who has been offered membership on the board of a Crime Stoppers, Crime Solvers or Crime Line program as defined in §15.2-1713.1;
12. Administrators and board presidents of and applicants for licensure or registration as a child welfare agency as defined in §63.2-100 for dissemination to the Commissioner of Social Services' representative pursuant to §63.2-1702 for the conduct of investigations with respect to employees of and volunteers at such facilities, caretakers, and other adults living in family day homes or homes approved by family day systems, and foster and adoptive parent applicants of private child-placing agencies, pursuant to §§63.2-1719, 63.2-1720, 63.2-1720.1, 63.2-1721, and 63.2-1721.1, subject to the restriction that the data shall not be further disseminated by the facility or agency to any party other than the data subject, the Commissioner of Social Services' representative or a federal or state authority or court as may be required to comply with an express requirement of law for such further dissemination;
13. The school boards of the Commonwealth for the purpose of screening individuals who are offered or who accept public school employment and those current school board employees for whom a report of arrest has been made pursuant to §19.2-83.1;
14. The Virginia Lottery for the conduct of investigations as set forth in the Virginia Lottery Law (§58.1-4000 et seq.), and the Department of Agriculture and Consumer Services for the conduct of investigations as set forth in Article 1.1:1 (§18.2-340.15 et seq.) of Chapter 8 of Title 18.2;
15. Licensed nursing homes, hospitals and home care organizations for the conduct of investigations of applicants for compensated employment in licensed nursing homes pursuant to §32.1-126.01, hospital pharmacies pursuant to §32.1-126.02, and home care organizations pursuant to § 32.1-162.9:1, subject to the limitations set out in subsection E;
16. Licensed assisted living facilities and licensed adult day care centers for the conduct of investigations of applicants for compensated employment in licensed assisted living facilities and licensed adult day care centers pursuant to §63.2-1720, subject to the limitations set out in subsection F;
17. (Effective until July 1, 2018) The Alcoholic Beverage Control Board for the conduct of investigations as set forth in §4.1-103.1;
17. (Effective July 1, 2018) The Virginia Alcoholic Beverage Control Authority for the conduct of investigations as set forth in § 4.1-103.1;
18. The State Board of Elections and authorized officers and employees thereof and general registrars appointed pursuant to §24.2-110 in the course of conducting necessary investigations with respect to voter registration, limited to any record of felony convictions;
19. The Commissioner of Behavioral Health and Developmental Services for those individuals who are committed to the custody of the Commissioner pursuant to §§19.2-169.2, 19.2-169.6, 19.2-182.2, 19.2-182.3, 19.2-182.8, and 19.2-182.9 for the purpose of placement, evaluation, and treatment planning;
20. Any alcohol safety action program certified by the Commission on the Virginia Alcohol Safety Action Program for (i) assessments of habitual offenders under §46.2-360, (ii) interventions with first offenders under § 18.2-251, or (iii) services to offenders under §18.2-51.4, 18.2-266, or 18.2-266.1;
21. Residential facilities for juveniles regulated or operated by the Department of Social Services, the Department of Education, or the Department of Behavioral Health and Developmental Services for the purpose of determining applicants' fitness for employment or for providing volunteer or contractual services;
22. The Department of Behavioral Health and Developmental Services and facilities operated by the Department for the purpose of determining an individual's fitness for employment pursuant to departmental instructions;
23. Pursuant to §22.1-296.3, the governing boards or administrators of private elementary or secondary schools which are accredited pursuant to §22.1-19 or a private organization coordinating such records information on behalf of such governing boards or administrators pursuant to a written agreement with the Department of State Police;
24. Public and nonprofit private colleges and universities for the purpose of screening individuals who are offered or accept employment;
25. Members of a threat assessment team established by a local school board pursuant to §22.1-79.4, by a public institution of higher education pursuant to §23-9.2:10, or by a private nonprofit institution of higher education, for the purpose of assessing or intervening with an individual whose behavior may present a threat to safety; however, no member of a threat assessment team shall redisclose any criminal history record information obtained pursuant to this section or otherwise use any record of an individual beyond the purpose that such disclosure was made to the threat assessment team;
25. Members of a threat assessment team established by a local school board pursuant to §22.1-79.4, by a public institution of higher education pursuant to §23.1-805, or by a private nonprofit institution of higher education, for the purpose of assessing or intervening with an individual whose behavior may present a threat to safety; however, no member of a threat assessment team shall redisclose any criminal history record information obtained pursuant to this section or otherwise use any record of an individual beyond the purpose that such disclosure was made to the threat assessment team;
26. Executive directors of community services boards or the personnel director serving the community services board for the purpose of determining an individual's fitness for employment, approval as a sponsored residential service provider, or permission to enter into a shared living arrangement with a person receiving medical assistance services pursuant to a waiver pursuant to §§37.2-506 and 37.2-607;
27. Executive directors of behavioral health authorities as defined in §37.2-600 for the purpose of determining an individual's fitness for employment, approval as a sponsored residential service provider, or permission to enter into a shared living arrangement with a person receiving medical assistance services pursuant to a waiver pursuant to §§37.2-506 and 37.2-607;
28. The Commissioner of Social Services for the purpose of locating persons who owe child support or who are alleged in a pending paternity proceeding to be a putative father, provided that only the name, address, demographics and social security number of the data subject shall be released;
29. Authorized officers or directors of agencies licensed pursuant to Article 2 (§37.2-403 et seq.) of Chapter 4 of Title 37.2 by the Department of Behavioral Health and Developmental Services for the purpose of determining if any applicant who accepts employment in any direct care position or requests approval as a sponsored residential service provider or permission to enter into a shared living arrangement with a person receiving medical assistance services pursuant to a waiver has been convicted of a crime that affects his fitness to have responsibility for the safety and well-being of individuals with mental illness, intellectual disability, or substance abuse pursuant to §§37.2-416, 37.2-506, and 37.2-607;
30. The Commissioner of the Department of Motor Vehicles, for the purpose of evaluating applicants for and holders of a motor carrier certificate or license subject to the provisions of Chapters 20 (§46.2-2000 et seq.) and 21 (§46.2-2100 et seq.) of Title 46.2;
31. The chairmen of the Committees for Courts of Justice of the Senate or the House of Delegates for the purpose of determining if any person being considered for election to any judgeship has been convicted of a crime;
32. Heads of state agencies in which positions have been identified as sensitive for the purpose of determining an individual's fitness for employment in positions designated as sensitive under Department of Human Resource Management policies developed pursuant to §2.2-1201.1. Dissemination of criminal history record information to the agencies shall be limited to those positions generally described as directly responsible for the health, safety and welfare of the general populace or protection of critical infrastructures;
33. The Office of the Attorney General, for all criminal justice activities otherwise permitted under subdivision A 1 and for purposes of performing duties required by the Civil Commitment of Sexually Violent Predators Act (§37.2-900 et seq.);
34. Shipyards, to the extent permitted by federal law or regulation, engaged in the design, construction, overhaul, or repair of nuclear vessels for the United States Navy, including their subsidiary companies, for the conduct of investigations of applications for employment or for access to facilities, by contractors, leased laborers, and other visitors;
35. Any employer of individuals whose employment requires that they enter the homes of others, for the purpose of screening individuals who apply for, are offered, or have accepted such employment;
36. Public agencies when and as required by federal or state law to investigate (i) applicants as providers of adult foster care and home-based services or (ii) any individual with whom the agency is considering placing an adult on an emergency, temporary, or permanent basis pursuant to § 63.2-1601.1, subject to the restriction that the data shall not be further disseminated by the agency to any party other than a federal or state authority or court as may be required to comply with an express requirement of law for such further dissemination, subject to limitations set out in subsection G;
37. The Department of Medical Assistance Services, or its designee, for the purpose of screening individuals who, through contracts, subcontracts, or direct employment, volunteer, apply for, are offered, or have accepted a position related to the provision of transportation services to enrollees in the Medicaid Program or the Family Access to Medical Insurance Security (FAMIS) Program, or any other program administered by the Department of Medical Assistance Services;
38. The State Corporation Commission for the purpose of investigating individuals who are current or proposed members, senior officers, directors, and principals of an applicant or person licensed under Chapter 16 (§6.2-1600 et seq.) or Chapter 19 (§6.2-1900 et seq.) of Title 6.2. Notwithstanding any other provision of law, if an application is denied based in whole or in part on information obtained from the Central Criminal Records Exchange pursuant to Chapter 16 or 19 of Title 6.2, the Commissioner of Financial Institutions or his designee may disclose such information to the applicant or its designee;
39. The Department of Professional and Occupational Regulation for the purpose of investigating individuals for initial licensure pursuant to §54.1-2106.1;
40. The Department for Aging and Rehabilitative Services and the Department for the Blind and Vision Impaired for the purpose of evaluating an individual's fitness for various types of employment and for the purpose of delivering comprehensive vocational rehabilitation services pursuant to Article 11 (§51.5-170 et seq.) of Chapter 14 of Title 51.5 that will assist the individual in obtaining employment;
41. Bail bondsmen, in accordance with the provisions of § 19.2-120;
42. The State Treasurer for the purpose of determining whether a person receiving compensation for wrongful incarceration meets the conditions for continued compensation under §8.01-195.12;
43. The Department of Social Services and directors of local departments of social services for the purpose of screening individuals seeking to enter into a contract with the Department of Social Services or a local department of social services for the provision of child care services for which child care subsidy payments may be provided;
44. The Department of Juvenile Justice to investigate any parent, guardian, or other adult members of a juvenile's household when completing a predispositional or postdispositional report required by § 16.1-273 or a Board of Juvenile Justice regulation promulgated pursuant to § 16.1-233; and
45. Other entities as otherwise provided by law.
Upon an ex parte motion of a defendant in a felony case and upon the showing that the records requested may be relevant to such case, the court shall enter an order requiring the Central Criminal Records Exchange to furnish the defendant, as soon as practicable, copies of any records of persons designated in the order on whom a report has been made under the provisions of this chapter.
Notwithstanding any other provision of this chapter to the contrary, upon a written request sworn to before an officer authorized to take acknowledgments, the Central Criminal Records Exchange, or the criminal justice agency in cases of offenses not required to be reported to the Exchange, shall furnish a copy of conviction data covering the person named in the request to the person making the request; however, such person on whom the data is being obtained shall consent in writing, under oath, to the making of such request. A person receiving a copy of his own conviction data may utilize or further disseminate that data as he deems appropriate. In the event no conviction data is maintained on the data subject, the person making the request shall be furnished at his cost a certification to that effect.
B. Use of criminal history record information disseminated to noncriminal justice agencies under this section shall be limited to the purposes for which it was given and may not be disseminated further.
C. No criminal justice agency or person shall confirm the existence or nonexistence of criminal history record information for employment or licensing inquiries except as provided by law.
D. Criminal justice agencies shall establish procedures to query the Central Criminal Records Exchange prior to dissemination of any criminal history record information on offenses required to be reported to the Central Criminal Records Exchange to ensure that the most up-to-date disposition data is being used. Inquiries of the Exchange shall be made prior to any dissemination except in those cases where time is of the essence and the normal response time of the Exchange would exceed the necessary time period. A criminal justice agency to whom a request has been made for the dissemination of criminal history record information that is required to be reported to the Central Criminal Records Exchange may direct the inquirer to the Central Criminal Records Exchange for such dissemination. Dissemination of information regarding offenses not required to be reported to the Exchange shall be made by the criminal justice agency maintaining the record as required by §15.2-1722.
E. Criminal history information provided to licensed nursing homes, hospitals and to home care organizations pursuant to subdivision A 15 shall be limited to the convictions on file with the Exchange for any offense specified in §§32.1-126.01, 32.1-126.02, and 32.1-162.9:1.
F. Criminal history information provided to licensed assisted living facilities and licensed adult day care centers pursuant to subdivision A 16 shall be limited to the convictions on file with the Exchange for any offense specified in §63.2-1720.
G. Criminal history information provided to public agencies
pursuant to subdivision A 36 shall be limited to the convictions on file with
the Exchange for any offense specified set forth in clause (i) of the
definition of barrier crime in § 63.2-1719 19.2-392.02.
H. Upon receipt of a written request from an employer or prospective employer, the Central Criminal Records Exchange, or the criminal justice agency in cases of offenses not required to be reported to the Exchange, shall furnish at the employer's cost a copy of conviction data covering the person named in the request to the employer or prospective employer making the request, provided that the person on whom the data is being obtained has consented in writing to the making of such request and has presented a photo-identification to the employer or prospective employer. In the event no conviction data is maintained on the person named in the request, the requesting employer or prospective employer shall be furnished at his cost a certification to that effect. The criminal history record search shall be conducted on forms provided by the Exchange.
§19.2-392.02. National criminal background checks by businesses and organizations regarding employees or volunteers providing care to children or the elderly or disabled.
A. For purposes of this section:
"Barrier crime" means any offense set forth in §
63.2-1719 or 63.2-1726 (i) a felony violation of §16.1-253.2; any
violation of §18.2-31, 18.2-32, 18.2-32.1, 18.2-32.2, 18.2-33, 18.2-35,
18.2-36, 18.2-36.1, 18.2-36.2, 18.2-41, or 18.2-42; any felony violation of §
18.2-46.2, 18.2-46.3, 18.2-46.3:1, or 18.2-46.3:3; any violation of §
18.2-46.5, 18.2-46.6, or 18.2-46.7; any violation of subsection A or B of §
18.2-47; any violation of §18.2-48, 18.2-49, or 18.2-50.3; any violation of §
18.2-51, 18.2-51.1, 18.2-51.2, 18.2-51.3, 18.2-51.4, 18.2-51.5, 18.2-51.6,
18.2-52, 18.2-52.1, 18.2-53, 18.2-53.1, 18.2-54.1, 18.2-54.2, 18.2-55,
18.2-55.1, or 18.2-56; any violation of subsection A or A1 of §18.2-56.1; any
violation of §18.2-56.2, 18.2-57, 18.2-57.01, 18.2-57.02, 18.2-57.2, 18.2-58,
18.2-58.1, 18.2-59, 18.2-60, or 18.2-60.1; any felony violation of §18.2-60.3
or 18.2-60.4; any violation of §18.2-61, 18.2-63, 18.2-64.1, 18.2-64.2,
18.2-67.1, 18.2-67.2, 18.2-67.3, 18.2-67.4, 18.2-67.4:1, 18.2-67.4:2,
18.2-67.5, 18.2-67.5:1, 18.2-67.5:2, 18.2-67.5:3, 18.2-77, 18.2-79, 18.2-80,
18.2-81, 18.2-82, 18.2-83, 18.2-84, 18.2-85, 18.2-86, 18.2-87, 18.2-87.1, or
18.2-88; any felony violation of §18.2-279, 18.2-280, 18.2-281, 18.2-282,
18.2-282.1, 18.2-286.1, or 18.2-287.2; any violation of §18.2-289, 18.2-290,
18.2-300, 18.2-308.4, or 18.2-314; any felony violation of §18.2-346; any
violation of §18.2-355, 18.2-356, 18.2-357, or 18.2-357.1; any violation of
subsection B of §18.2-361; any violation of §18.2-366, 18.2-369, 18.2-370,
18.2-370.1, 18.2-370.2, 18.2-370.3, 18.2-370.4, 18.2-370.5, 18.2-370.6, 18.2-371.1,
18.2-374.1, 18.2-374.1:1, 18.2-374.3, 18.2-374.4, 18.2-379, 18.2-386.1, or
18.2-386.2; any felony violation of §18.2-405 or 18.2-406; any violation of §
18.2-408, 18.2-413, 18.2-414, 18.2-423, 18.2-423.01, 18.2-423.1, 18.2-423.2,
18.2-433.2, 18.2-472.1, 18.2-474.1, 18.2-477, 18.2-477.1, 18.2-477.2, 18.2-478,
18.2-480, 18.2-481, 18.2-484, 18.2-485, 37.2-917, or 53.1-203; any
substantially similar offense under the laws of another jurisdiction; or any
conspiracy or attempt to commit any offense listed in this clause; (ii) any
violation of §18.2-89, 18.2-90, 18.2-91, 18.2-92, 18.2-93, or 18.2-94; any
substantially similar offense under the laws of another jurisdiction; or any
conspiracy or attempt to commit any offense listed in this clause; (iii) any
felony violation of §18.2-248, 18.2-248.01, 18.2-248.02, 18.2-248.03,
18.2-248.1, 18.2-248.5, 18.2-251.2, 18.2-251.3, 18.2-255, 18.2-255.2, 18.2-258,
18.2-258.02, 18.2-258.1, or 18.2-258.2; any substantially similar offense under
the laws of another jurisdiction; or any conspiracy or attempt to commit any
offense listed in this clause; (iv) any felony violation of §18.2-250; any
substantially similar offense under the laws of another jurisdiction; or any
conspiracy or attempt to commit any offense listed in this clause; (v) any
offense set forth in §9.1-902 that results in the person's requirement to
register with the Sex Offender and Crimes Against Minors Registry pursuant to §
9.1-901; any substantially similar offense under the laws of another jurisdiction;
any offense for which registration in a sex offender and crimes against minors
registry is required under the laws of the jurisdiction where the offender was
convicted; or any conspiracy or attempt to commit any offense listed in this
clause; or (vi) any other felony not included in clause (i), (ii), (iii), (iv),
or (v) unless five years have elapsed from the date of the conviction.
"Barrier crime information" means the following facts concerning a person who has been arrested for, or has been convicted of, a barrier crime, regardless of whether the person was a juvenile or adult at the time of the arrest or conviction: full name, race, sex, date of birth, height, weight, fingerprints, a brief description of the barrier crime or offenses for which the person has been arrested or has been convicted, the disposition of the charge, and any other information that may be useful in identifying persons arrested for or convicted of a barrier crime.
"Care" means the provision of care, treatment, education, training, instruction, supervision, or recreation to children or the elderly or disabled.
"Department" means the Department of State Police.
"Employed by" means any person who is employed by, volunteers for, seeks to be employed by, or seeks to volunteer for a qualified entity.
"Identification document" means a document made or issued by or under the authority of the United States government, a state, a political subdivision of a state, a foreign government, political subdivision of a foreign government, an international governmental or an international quasi-governmental organization that, when completed with information concerning a particular individual, is of a type intended or commonly accepted for the purpose of identification of individuals.
"Provider" means a person who (i) is employed by a qualified entity and has, seeks to have, or may have unsupervised access to a child or to an elderly or disabled person to whom the qualified entity provides care; (ii) is a volunteer of a qualified entity and has, seeks to have, or may have unsupervised access to a child to whom the qualified entity provides care; or (iii) owns, operates, or seeks to own or operate a qualified entity.
"Qualified entity" means a business or organization that provides care to children or the elderly or disabled, whether governmental, private, for profit, nonprofit or voluntary, except organizations exempt pursuant to subdivision A 10 of §63.2-1715.
B. A qualified entity may request the Department of State Police to conduct a national criminal background check on any provider who is employed by such entity. No qualified entity may request a national criminal background check on a provider until such provider has:
1. Been fingerprinted; and
2. Completed and signed a statement, furnished by the entity, that includes (i) his name, address, and date of birth as it appears on a valid identification document; (ii) a disclosure of whether or not the provider has ever been convicted of or is the subject of pending charges for a criminal offense within or outside the Commonwealth, and if the provider has been convicted of a crime, a description of the crime and the particulars of the conviction; (iii) a notice to the provider that the entity may request a background check; (iv) a notice to the provider that he is entitled to obtain a copy of any background check report, to challenge the accuracy and completeness of any information contained in any such report, and to obtain a prompt determination as to the validity of such challenge before a final determination is made by the Department; and (v) a notice to the provider that prior to the completion of the background check the qualified entity may choose to deny the provider unsupervised access to children or the elderly or disabled for whom the qualified entity provides care.
C. Upon receipt of (i) a qualified entity's written request to conduct a background check on a provider, (ii) the provider's fingerprints, and (iii) a completed, signed statement as described in subsection B, the Department shall make a determination whether the provider has been convicted of or is the subject of charges of a barrier crime. To conduct its determination regarding the provider's barrier crime information, the Department shall access the national criminal history background check system, which is maintained by the Federal Bureau of Investigation and is based on fingerprints and other methods of identification, and shall access the Central Criminal Records Exchange maintained by the Department. If the Department receives a background report lacking disposition data, the Department shall conduct research in whatever state and local recordkeeping systems are available in order to obtain complete data. The Department shall make reasonable efforts to respond to a qualified entity's inquiry within 15 business days.
D. Any background check conducted pursuant to this section for a provider employed by a private entity shall be screened by the Department of State Police. If the provider has been convicted of or is under indictment for a barrier crime, the qualified entity shall be notified that the provider is not qualified to work or volunteer in a position that involves unsupervised access to children or the elderly or disabled.
E. Any background check conducted pursuant to this section for a provider employed by a governmental entity shall be provided to that entity.
F. In the case of a provider who desires to volunteer at a qualified entity and who is subject to a national criminal background check, the Department and the Federal Bureau of Investigation may each charge the provider the lesser of $18 or the actual cost to the entity of the background check conducted with the fingerprints.
G. The failure to request a criminal background check pursuant to subsection B shall not be considered negligence per se in any civil action.
§22.1-296.3. Certain private school employees subject to fingerprinting and criminal records checks.
A. As a condition of employment, the governing boards or administrators of private elementary or secondary schools that are accredited pursuant to §22.1-19 shall require any applicant who accepts employment, whether full-time or part-time, permanent or temporary, to submit to fingerprinting and to provide personal descriptive information to be forwarded along with the applicant's fingerprints through the Central Criminal Records Exchange to the Federal Bureau of Investigation for the purpose of obtaining criminal history record information regarding such applicant.
The Central Criminal Records Exchange, upon receipt of an
applicant's record or notification that no record exists, shall report to the
governing board or administrator, or to a private organization coordinating
such records on behalf of such governing board or administrator pursuant to a
written agreement with the Department of State Police, that the applicant meets
the criteria or does not meet the criteria for employment based on whether or
not the applicant has ever been convicted of the following crimes or their
equivalent if from another jurisdiction: any offense set forth any
barrier crime as defined in § 63.2-1719 19.2-392.02.
B. The Central Criminal Records Exchange shall not disclose information to such governing board, administrator, or private organization coordinating such records regarding charges or convictions of any crimes. If any applicant is denied employment because of information appearing on the criminal history record and the applicant disputes the information upon which the denial was based, the Central Criminal Records Exchange shall, upon request, furnish the applicant the procedures for obtaining a copy of the criminal history record from the Federal Bureau of Investigation. The information provided to the governing board, administrator, or private organization coordinating such records shall not be disseminated except as provided in this section. A governing board or administrator employing or previously employing a temporary teacher or a private organization coordinating such records on behalf of such governing board or administrator pursuant to a written agreement with the Department of State Police may disseminate, at the written request of such temporary teacher, whether such teacher meets the criteria or does not meet the criteria for employment pursuant to subsection A to the governing board or administrator of another accredited private elementary or secondary school in which such teacher has accepted employment. Such governing board, administrator, or private organization transferring criminal records information pursuant to this section shall be immune from civil liability for any official act, decision, or omission done or made in the performance of such transfer, when such acts or omissions are taken in good faith and are not the result of gross negligence or willful misconduct.
Fees charged for the processing and administration of background checks pursuant to this section shall not exceed the actual cost to the state of such processing and administration.
C. Effective July 1, 2017, the governing board or administrator of a private elementary or secondary school that is accredited pursuant to §22.1-19 that operates a child welfare agency regulated by the Department of Social Services pursuant to Chapter 17 (§63.2-1700 et seq.) of Title 63.2 shall accept evidence of a background check in accordance with § 63.2-1720.1 for individuals who are required to undergo a background check in accordance with that section as a condition of employment in lieu of the background check required by subsection A.
D. For purposes of this section, "governing board" or "administrator" means the unit or board or person designated to supervise operations of a system of private schools or a private school accredited pursuant to §22.1-19.
Nothing in this section or §19.2-389 shall be construed to require any private or religious school which is not so accredited to comply with this section.
§32.1-126.01. Employment for compensation of persons convicted of barrier crimes prohibited; criminal records check required; suspension or revocation of license.
A. A licensed nursing home shall not hire for compensated
employment, persons who have been convicted of a felony violation of
a protective order as set out in §16.1-253.2, murder or manslaughter as set
out in Article 1 (§18.2-30 et seq.) of Chapter 4 of Title 18.2, malicious
wounding by mob as set out in §18.2-41, abduction as set out in subsection A
or B of §18.2-47, abduction for immoral purposes as set out in §18.2-48,
assaults and bodily woundings as set out in Article 4 (§18.2-51 et seq.) of
Chapter 4 of Title 18.2, robbery as set out in §18.2-58, carjacking as set out
in §18.2-58.1, extortion by threat as set out in §18.2-59, threats of death
or bodily injury as set out in §18.2-60, felony stalking as set out in §18.2-60.3,
a felony violation of a protective order as set out in §18.2-60.4, sexual
assault as set out in Article 7 (§18.2-61 et seq.) of Chapter 4 of Title 18.2,
arson as set out in Article 1 (§18.2-77 et seq.) of Chapter 5 of Title 18.2,
drive by shooting as set out in §18.2-286.1, use of a machine gun in a crime
of violence as set out in §18.2-289, aggressive use of a machine gun as set
out in §18.2-290, use of a sawed-off shotgun in a crime of violence as set out
in subsection A of §18.2-300, pandering as set out in §18.2-355, crimes
against nature involving children as set out in §18.2-361, incest as set out
in §18.2-366, taking indecent liberties with children as set out in §18.2-370
or §18.2-370.1, abuse and neglect of children as set out in §18.2-371.1,
failure to secure medical attention for an injured child as set out in §
18.2-314, obscenity offenses as set out in §18.2-374.1, possession of child
pornography as set out in §18.2-374.1:1, electronic facilitation of
pornography as set out in §18.2-374.3, abuse and neglect of incapacitated
adults as set out in §18.2-369, employing or permitting a minor to assist in
an act constituting an offense under Article 5 (§18.2-372 et seq.) of Chapter
8 of Title 18.2 as set out in §18.2-379, delivery of drugs to prisoners as set
out in §18.2-474.1, escape from jail as set out in §18.2-477, felonies by
prisoners as set out in §53.1-203, or an equivalent offense in another state
any offense set forth in clause (i) of the definition of barrier crime in §
19.2-392.02. However, a licensed nursing home may hire an applicant who has
been convicted of one such offense punishable as a misdemeanor
specified in this section that does not involving involve
abuse or neglect, if five years have elapsed following the conviction
or finding.
Any person desiring to work at a licensed nursing home shall
provide the hiring facility with a sworn statement or affirmation disclosing
any criminal convictions or any pending criminal charges, whether within or
without the Commonwealth. Any person making a materially false statement when
providing such sworn statement or affirmation regarding any such offense
shall be is guilty upon conviction of a Class 1 misdemeanor. Further
dissemination of the information provided pursuant to this section is
prohibited other than to a federal or state authority or court as may be
required to comply with an express requirement of law for such further
dissemination.
A nursing home shall, within 30 days of employment, obtain for any compensated employees an original criminal record clearance with respect to convictions for offenses specified in this section or an original criminal history record from the Central Criminal Records Exchange. However, no employee shall be permitted to work in a position that involves direct contact with a patient until an original criminal record clearance or original criminal history record has been received, unless such person works under the direct supervision of another employee for whom a background check has been completed in accordance with the requirements of this section. The provisions of this section shall be enforced by the Commissioner. If an applicant is denied employment because of convictions appearing on his criminal history record, the nursing home shall provide a copy of the information obtained from the Central Criminal Records Exchange to the applicant.
The provisions of this section shall not apply to volunteers who work with the permission or under the supervision of a person who has received a clearance pursuant to this section.
B. A person who complies in good faith with the provisions of this section shall not be liable for any civil damages for any act or omission in the performance of duties under this section unless the act or omission was the result of gross negligence or willful misconduct.
C. A licensed nursing home shall notify and provide to all students a copy of the provisions of this section prior to or upon enrollment in a certified nurse aide program operated by such nursing home.
§32.1-162.9:1. Employment for compensation of persons convicted of barrier crimes prohibited; criminal records check required; drug testing; suspension or revocation of license.
A. A licensed home care organization as defined in §32.1-162.7
or any home care organization exempt from licensure under subdivision 3 a or b
of §32.1-162.8 or any licensed hospice as defined in §32.1-162.1 shall not
hire for compensated employment, persons who have been convicted of a felony
violation of a protective order as set out in §16.1-253.2, murder or
manslaughter as set out in Article 1 (§18.2-30 et seq.) of Chapter 4 of Title
18.2, malicious wounding by a mob as set out in §18.2-41, abduction as set out
in subsection A or B of §18.2-47, abduction for immoral purposes as set out in
§18.2-48, assaults and bodily woundings as set out in Article 4 (§18.2-51 et
seq.) of Chapter 4 of Title 18.2, robbery as set out in §18.2-58, carjacking
as set out in §18.2-58.1, extortion by threat as set out in §18.2-59, threats
of death or bodily injury as set out in §18.2-60, felony stalking as set out
in §18.2-60.3, a felony violation of a protective order as set out in §
18.2-60.4, sexual assault as set out in Article 7 (§18.2-61 et seq.) of
Chapter 4 of Title 18.2, arson as set out in Article 1 (§18.2-77 et seq.) of
Chapter 5 of Title 18.2, drive by shooting as set out in §18.2-286.1, use of a
machine gun in a crime of violence as set out in §18.2-289, aggressive use of
a machine gun as set out in §18.2-290, use of a sawed-off shotgun in a crime
of violence as set out in subsection A of §18.2-300, pandering as set out in §
18.2-355, crimes against nature involving children as set out in §18.2-361,
incest as set out in §18.2-366, taking indecent liberties with children as set
out in §18.2-370 or §18.2-370.1, abuse and neglect of children as set out in
§18.2-371.1, failure to secure medical attention for an injured child as set
out in §18.2-314, obscenity offenses as set out in §18.2-374.1, possession of
child pornography as set out in §18.2-374.1:1, electronic facilitation of
pornography as set out in §18.2-374.3, abuse and neglect of incapacitated
adults as set out in §18.2-369, employing or permitting a minor to assist in
an act constituting an offense under Article 5 (§18.2-372 et seq.) of Chapter
8 of Title 18.2 as set out in §18.2-379, delivery of drugs to prisoners as set
out in §18.2-474.1, escape from jail as set out in §18.2-477, felonies by
prisoners as set out in §53.1-203, or an equivalent offense in another state
any offense set forth in clause (i) of the definition of barrier crime in §
19.2-392.02.
However, a home care organization or hospice may hire an
applicant who has been convicted of one such offense punishable as a
misdemeanor specified in this section that does not involving
involve abuse or neglect, if five years have elapsed since the
conviction or finding.
Any person desiring to work at a licensed home care
organization as defined in §32.1-162.7 or any home care organization exempt
from licensure under subdivision 3 a or b of §32.1-162.8 or any licensed
hospice as defined in §32.1-162.1 shall provide the hiring facility with a
sworn statement or affirmation disclosing any criminal convictions or any
pending criminal charges, whether within or without the Commonwealth. Any
person making a materially false statement when providing such sworn statement
or affirmation regarding any such offense shall be is guilty upon
conviction of a Class 1 misdemeanor. Further dissemination of the information
provided pursuant to this section is prohibited other than to a federal or
state authority or court as may be required to comply with an express
requirement of law for such further dissemination.
Such home care organization or hospice shall, within 30 days of employment, obtain for any compensated employees an original criminal record clearance with respect to convictions for offenses specified in this section or an original criminal history record from the Central Criminal Records Exchange. However, no employee shall be permitted to work in a position that involves direct contact with a patient until an original criminal record clearance or original criminal history record has been received, unless such person works under the direct supervision of another employee for whom a background check has been completed in accordance with the requirements of this section. The provisions of this section shall be enforced by the Commissioner. If an applicant is denied employment because of convictions appearing on his criminal history record, the home care organization or hospice shall provide a copy of the information obtained from the Central Criminal Records Exchange to the applicant.
The provisions of this section shall not apply to volunteers who work with the permission or under the supervision of a person who has received a clearance pursuant to this section.
B. A licensed home care organization as defined in § 32.1-162.7 or any home care organization exempt from licensure under subdivision 3 a or b of §32.1-162.8 shall establish policies for maintaining a drug-free workplace, which may include drug testing when the employer has cause to believe that the person has engaged in the use of illegal drugs and periodically during the course of employment. All positive results from drug testing administered pursuant to this section shall be reported to the health regulatory boards responsible for licensing, certifying, or registering the person to practice, if any.
C. A person who complies in good faith with the provisions of this section shall not be liable for any civil damages for any act or omission in the performance of duties under this section unless the act or omission was the result of gross negligence or willful misconduct.
D. A licensed home care organization or hospice shall notify
and provide all students a copy of the provisions of this section prior to or
upon enrollment in a certified nurse aide program operated by such home
care organization or hospice.
§37.2-314. Background check required.
A. As a condition of employment, the Department shall require any applicant who (i) accepts a position of employment at a state facility and was not employed by that state facility prior to July 1, 1996, or (ii) accepts a position with the Department that receives, monitors, or disburses funds of the Commonwealth and was not employed by the Department prior to July 1, 1996, to submit to fingerprinting and provide personal descriptive information to be forwarded along with the applicant's fingerprints through the Central Criminal Records Exchange to the Federal Bureau of Investigation (FBI) for the purpose of obtaining national criminal history record information regarding the applicant.
B. For purposes of clause (i) of subsection A, the Department
shall not hire for compensated employment persons who have been (i)
convicted (i) of a felony violation of a protective order as set out
in §16.1-253.2; murder or manslaughter, as set out in Article 1 (§18.2-30 et
seq.) of Chapter 4 of Title 18.2; malicious wounding by mob, as set out in §
18.2-41; abduction, as set out in subsection A or B of §18.2-47; abduction for
immoral purposes, as set out in §18.2-48; assault and bodily wounding, as set
out in Article 4 (§18.2-51 et seq.) of Chapter 4 of Title 18.2; robbery, as
set out in §18.2-58; carjacking, as set out §18.2-58.1; extortion by threat,
as set out in §18.2-59; threat, as set out in §18.2-60; any felony stalking
violation, as set out in §18.2-60.3; a felony violation of a protective order as
set out in §18.2-60.4; sexual assault, as set out in Article 7 (§18.2-61 et
seq.) of Chapter 4 of Title 18.2; arson, as set out in Article 1 (§18.2-77 et
seq.) of Chapter 5 of Title 18.2; burglary, as set out in Article 2 (§18.2-89
et seq.) of Chapter 5 of Title 18.2; any felony violation relating to
distribution of drugs, as set out in Article 1 (§18.2-247 et seq.) of Chapter
7 of Title 18.2; drive-by shooting, as set out in §18.2-286.1; use of a
machine gun in a crime of violence, as set out in §18.2-289; aggressive use of
a machine gun, as set out in §18.2-290; use of a sawed-off shotgun in a crime
of violence, as set out in subsection A of §18.2-300; pandering, as set out in
§18.2-355; crimes against nature involving children, as set out in §18.2-361;
taking indecent liberties with children, as set out in §18.2-370 or
18.2-370.1; abuse or neglect of children, as set out in §18.2-371.1, including
failing to secure medical attention for an injured child, as set out in §
18.2-314; obscenity offenses, as set out in §18.2-374.1; possession of child
pornography, as set out in §18.2-374.1:1; electronic facilitation of
pornography, as set out in §18.2-374.3; incest, as set out in §18.2-366;
abuse or neglect of incapacitated adults, as set out in §18.2-369; employing
or permitting a minor to assist in an act constituting an offense under Article
5 (§18.2-372 et seq.) of Chapter 8 of Title 18.2, as set out in §18.2-379;
delivery of drugs to prisoners, as set out in §18.2-474.1; escape from jail,
as set out in §18.2-477; felonies by prisoners, as set out in §53.1-203; or
an equivalent offense in another state any offense set forth in clause
(i) or (ii) of the definition of barrier crime in §19.2-392.02; (ii)
convicted of any felony violation relating to possession of drugs, as
set out in Article 1 (§18.2-247 et seq.) of Chapter 7 of Title 18.2,
offense set forth in clause (iii) of the definition of barrier crime in §
19.2-392.02; or (iii) convicted in the five years prior to the
application date for employment, of any felony violation relating to
possession of drugs, as set out in Article 1 (§18.2-247 et seq.) of Chapter 7
of Title 18.2, and offense set forth in clause (iv) of the definition of
barrier crime in §19.2-392.02 or continue on probation or parole or have
failed to pay required court costs for such offense set forth in clause (iv)
of the definition of barrier crime in §19.2-392.02.
C. The Central Criminal Records Exchange, upon receipt of an applicant's record or notification that no record exists, shall submit a report to the state facility or to the Department. If an applicant is denied employment because of information appearing on his criminal history record and the applicant disputes the information upon which the denial was based, the Central Criminal Records Exchange shall, upon written request, furnish to the applicant the procedures for obtaining a copy of the criminal history record from the FBI. The information provided to the state facility or Department shall not be disseminated except as provided in this section.
D. Those applicants listed in clause (i) of subsection A also shall provide to the state facility or Department a copy of information from the central registry maintained pursuant to §63.2-1515 on any investigation of child abuse or neglect undertaken on them.
E. The Board may adopt regulations to comply with the provisions of this section. Copies of any information received by the state facility or Department pursuant to this section shall be available to the Department and to the applicable state facility but shall not be disseminated further, except as permitted by state or federal law. The cost of obtaining the criminal history record and the central registry information shall be borne by the applicant, unless the Department or state facility decides to pay the cost.
§37.2-408.1. Background check required; children's residential facilities.
A. Notwithstanding the provisions of §37.2-416, as a condition of employment, volunteering or providing services on a regular basis, every children's residential facility that is regulated or operated by the Department shall require any person who (i) accepts a position of employment at such a facility who was not employed by that facility prior to July 1, 2008, (ii) volunteers for such a facility on a regular basis and will be alone with a juvenile in the performance of his duties who was not a volunteer at such facility prior to July 1, 2008, or (iii) provides contractual services directly to a juvenile for such facility on a regular basis and will be alone with a juvenile in the performance of his duties who did not provide such services prior to July 1, 2008, to submit to fingerprinting and to provide personal descriptive information, to be forwarded along with the person's fingerprints through the Central Criminal Records Exchange to the Federal Bureau of Investigation for the purpose of obtaining criminal history record information regarding the person. The children's residential facility shall inform the person that he is entitled to obtain a copy of any background check report and to challenge the accuracy and completeness of any such report and obtain a prompt resolution before a final determination is made of the person's eligibility to have responsibility for the safety and well-being of children. The person shall provide the children's residential facility with a written statement or affirmation disclosing whether he has ever been convicted of or is the subject of pending charges for any offense within or outside the Commonwealth. The results of the criminal history background check must be received prior to permitting a person to work with children.
The Central Criminal Records Exchange, upon receipt of a
person's record or notification that no record exists, shall forward it to the
state agency that operates or regulates the children's residential facility
with which the person is affiliated. The state agency shall, upon receipt of a
person's record lacking disposition data, conduct research in whatever state
and local recordkeeping systems are available in order to obtain complete data.
The state agency shall report to the children's facility whether the person is
eligible to have responsibility for the safety and well-being of children.
Except as otherwise provided in subsection B, no children's residential
facility regulated or operated by the Department shall hire for compensated
employment or allow to volunteer or provide contractual services persons who
have been (a) convicted of or are the subject of pending charges for
the following crimes: a felony violation of a protective order as set out in §
16.1-253.2; murder or manslaughter as set out in Article 1 (§18.2-30 et seq.)
of Chapter 4 of Title 18.2; malicious wounding by mob as set out in §18.2-41;
abduction as set out in subsection A or B of §18.2-47; abduction for immoral
purposes as set out in §18.2-48; assault and bodily woundings as set out in
Article 4 (§18.2-51 et seq.) of Chapter 4 of Title 18.2; robbery as set out in
§18.2-58; carjacking as set out in §18.2-58.1; extortion by threat as set out
in §18.2-59; threat as set out in §18.2-60; any felony stalking violation as
set out in §18.2-60.3; a felony violation of a protective order as set out in
§18.2-60.4; sexual assault as set out in Article 7 (§18.2-61 et seq.) of
Chapter 4 of Title 18.2; arson as set out in Article 1 (§18.2-77 et seq.) of
Chapter 5 of Title 18.2; burglary as set out in Article 2 (§18.2-89 et seq.)
of Chapter 5 of Title 18.2; any felony violation relating to distribution of
drugs as set out in Article 1 (§18.2-247 et seq.) of Chapter 7 of Title 18.2;
drive-by shooting as set out in §18.2-286.1; use of a machine gun in a crime
of violence as set out in §18.2-289; aggressive use of a machine gun as set
out in §18.2-290; use of a sawed-off shotgun in a crime of violence as set out
in subsection A of §18.2-300; pandering as set out in §18.2-355; crimes
against nature involving children as set out §18.2-361; taking indecent
liberties with children as set out in §18.2-370 or 18.2-370.1; abuse or
neglect of children as set out in §18.2-371.1, including failure to secure
medical attention for an injured child as set out in §18.2-314; obscenity offenses
as set out in §18.2-374.1; possession of child pornography as set out in §
18.2-374.1:1; electronic facilitation of pornography as set out in §
18.2-374.3; incest as set out in §18.2-366; abuse or neglect of incapacitated
adults as set out in §18.2-369; employing or permitting a minor to assist in
an act constituting an offense under Article 5 (§18.2-372 et seq.) of Chapter
8 of Title 18.2, as set out in §18.2-379; delivery of drugs to prisoners as
set out in §18.2-474.1; escape from jail as set out in §18.2-477; felonies by
prisoners as set out in §53.1-203; or an equivalent offense in another state;
(a) any offense set forth in clause (i), (ii), or (v) of the definition of
barrier crime in §19.2-392.02; (b) convicted of any felony
violation relating to possession of drugs set out in Article 1 (§18.2-247 et
seq.) of Chapter 7 of Title 18.2, or an equivalent offense in another state, in
the five years prior to the application date for employment, to be a volunteer,
or to provide contractual services offense set forth in clause (iii) of
the definition of barrier crime in §19.2-392.02; or (c)
convicted of in the five years prior to the application date for
employment, to be a volunteer, or to provide contractual services, any
felony violation relating to possession of drugs as set out in Article 1 (§
18.2-247 et seq.) of Chapter 7 of Title 18.2 and offense set forth in
clause (iv) of the definition of barrier crime in §19.2-392.02 and
continue on probation or parole or have failed to pay required court costs;
or (d) convicted of any offense set forth in §9.1-902 or have been the subject
of a finding of not guilty by reason of insanity in accordance with Chapter
11.1 (§19.2-182.2 et seq.) of Title 19.2 of an offense set forth in §9.1-902
that results in the person's requirement to register with the Sex Offender and
Crimes Against Minors Registry pursuant to §9.1-901, or any similar registry
in any other state for such offense set forth in clause (iv) of the
definition of barrier crime in §19.2-392.02. The provisions of this
section also shall apply to structured residential programs, excluding secure
detention facilities, established pursuant to §16.1-309.3 for juvenile
offenders cited in a complaint for intake or in a petition before the court
that alleges the juvenile is delinquent or in need of services or supervision.
B. Notwithstanding the provisions of subsection A, a children's residential facility may hire for compensated employment or for volunteer or contractual service purposes persons who have been convicted of not more than one misdemeanor offense under §18.2-57 or 18.2-57.2, or any substantially similar offense under the laws of another jurisdiction, if 10 years have elapsed following the conviction, unless the person committed such offense in the scope of his employment, volunteer, or contractual services.
If the person is denied employment, or the opportunity to volunteer or provide services, at a children's residential facility because of information appearing on his criminal history record, and the person disputes the information upon which the denial was based, upon written request of the person the state agency shall furnish the person the procedures for obtaining his criminal history record from the Federal Bureau of Investigation. If the person has been permitted to assume duties that do not involve contact with children pending receipt of the report, the children's residential facility is not precluded from suspending the person from his position pending a final determination of the person's eligibility to have responsibility for the safety and well-being of children. The information provided to the children's residential facility shall not be disseminated except as provided in this section.
C. Those persons listed in clauses (i), (ii), and (iii) of subsection A also shall authorize the children's residential facility to obtain a copy of information from the central registry maintained pursuant to § 63.2-1515 on any investigation of child abuse or neglect undertaken on him. The person shall provide the children's residential facility with a written statement or affirmation disclosing whether he has ever been the subject of a founded case of child abuse or neglect within or outside the Commonwealth. The children's residential facility shall receive the results of the central registry search prior to permitting a person to work alone with children. Children's residential facilities regulated or operated by the Department shall not hire for compensated employment, or allow to volunteer or provide contractual services, persons who have a founded case of child abuse or neglect.
D. The cost of obtaining the criminal history record and the central registry information shall be borne by the person unless the children's residential facility, at its option, decides to pay the cost.
§37.2-416. Background checks required.
A. As used in this section:
"Direct care position" means any position that includes responsibility for (i) treatment, case management, health, safety, development, or well-being of an individual receiving services or (ii) immediately supervising a person in a position with this responsibility.
"Hire for compensated employment" does not include (i) a promotion from one adult substance abuse or adult mental health treatment position to another such position within the same licensee licensed pursuant to this article or (ii) new employment in an adult substance abuse or adult mental health treatment position in another office or program licensed pursuant to this article if the person employed prior to July 1, 1999, in a licensed program had no convictions in the five years prior to the application date for employment. "Hire for compensated employment" includes (a) a promotion or transfer from an adult substance abuse treatment position to any mental health or developmental services direct care position within the same licensee licensed pursuant to this article or (b) new employment in any mental health or developmental services direct care position in another office or program of the same licensee licensed pursuant to this article for which the person has previously worked in an adult substance abuse treatment position.
"Shared living" means an arrangement in which the Commonwealth's program of medical assistance pays a portion of a person's rent, utilities, and food expenses in return for the person residing with and providing companionship, support, and other limited, basic assistance to a person with intellectual or developmental disabilities receiving medical assistance services in accordance with a waiver for whom he has no legal responsibility.
B. Every provider licensed pursuant to this article shall
require (i) any applicant who accepts employment in any direct care position,
(ii) any applicant for approval as a sponsored residential service provider,
(iii) any adult living in the home of an applicant for approval as a sponsored
residential service provider, (iv) any person employed by a sponsored
residential service provider to provide services in the home, and (v) any
person who enters into a shared living arrangement with a person receiving
medical assistance services pursuant to a waiver to submit to fingerprinting
and provide personal descriptive information to be forwarded through the
Central Criminal Records Exchange to the Federal Bureau of Investigation (FBI)
for the purpose of obtaining national criminal history record information
regarding the applicant. Except as otherwise provided in subsection C, D, or F,
no provider licensed pursuant to this article shall (a) hire:
1. Hire for compensated employment persons
any person who have been convicted of any offense listed in subsection B
of §37.2-314 has been convicted of (i) any offense set forth in clause
(i) or (ii) of the definition of barrier crime in §19.2-392.02; (ii) any
offense set forth in clause (iii) of the definition of barrier crime in §
19.2-392.02; or (iii) in the five years prior to the application date for
employment, any offense set forth in clause (iv) of the definition of barrier
crime in §19.2-392.02 or continues on probation or parole or has failed to pay
required court costs for such offense set forth in clause (iv) of the
definition of barrier crime in §19.2-392.02; (b) approve
2. Approve an applicant as a sponsored residential
service provider if the applicant, any adult residing in the home of the
applicant, or any person employed by the applicant has been convicted of an
(i) any offense listed in subsection B of §37.2-314 set forth in
clause (i) or (ii) of the definition of barrier crime in §19.2-392.02; (ii)
any offense set forth in clause (iii) of the definition of barrier crime in §
19.2-392.02; or (iii) in the five years prior to the application date for
employment, any offense set forth in clause (iv) of the definition of barrier
crime in §19.2-392.02 or continues on probation or parole or has failed to pay
required court costs for such offense set forth in clause (iv) of the
definition of barrier crime in §19.2-392.02; or (c) permit
3. Permit to enter into a shared living arrangement
with a person receiving medical assistance services pursuant to a waiver any
person who has been convicted of an (i) any offense listed in
subsection B of §37.2-314 set forth in clause (i) or (ii) of the
definition of barrier crime in §19.2-392.02; (ii) any offense set forth in
clause (iii) of the definition of barrier crime in §19.2-392.02; or (iii) in
the five years prior to the application date for employment, any offense set
forth in clause (iv) of the definition of barrier crime in §19.2-392.02 or continues
on probation or parole or has failed to pay required court costs for such
offense set forth in clause (iv) of the definition of barrier crime in §
19.2-392.02.
The Central Criminal Records Exchange, upon receipt of an applicant's record or notification that no record exists, shall submit a report to the requesting authorized officer or director of a provider licensed pursuant to this article. If any applicant is denied employment because of information appearing on the criminal history record and the applicant disputes the information upon which the denial was based, the Central Criminal Records Exchange shall, upon written request, furnish to the applicant the procedures for obtaining a copy of the criminal history record from the FBI. The information provided to the authorized officer or director of a provider licensed pursuant to this article shall not be disseminated except as provided in this section.
C. Notwithstanding the provisions of subsection B, a provider
may hire for compensated employment at adult substance abuse or adult mental
health treatment facilities a person who was convicted of (i) a
misdemeanor violation relating to (i) unlawful hazing, as set out in
of §18.2-56; (ii) reckless handling of a firearm, as set out in §
or 18.2-56.1; or (iii) assault and battery, as set out in or
subsection A of §18.2-57; or (ii) any misdemeanor or felony
violation related to (a) reckless endangerment of others by throwing
objects, as set out in of §18.2-51.3; (b) threat, as set out in
§, 18.2-60; (c) breaking and entering a dwelling house with
intent to commit other misdemeanor, as set out in §, 18.2-92; or
(d) possession of burglarious tools, as set out in §, or 18.2-94;
or (iii) any felony violation relating to the distribution of
drugs, as set out in Article 1 (§18.2-247 et seq.) of Chapter 7 of Title 18.2
offense set forth in clause (iii) of the definition of barrier crime in §
19.2-392.02, except an offense pursuant to subsections H1 and H2 of §
18.2-248; or an equivalent (iv) any substantially similar offense
in under the laws of another state jurisdiction, if
the hiring provider determines, based upon a screening assessment, that the
criminal behavior was substantially related to the applicant's substance abuse
or mental illness and that the person has been successfully rehabilitated and
is not a risk to individuals receiving services based on his criminal history
background and his substance abuse or mental illness history.
D. Notwithstanding the provisions of subsection B, a provider
may hire for compensated employment at adult substance abuse treatment
facilities a person who has been convicted of not more than one offense of
assault and battery of a law-enforcement officer under subsection C of
§18.2-57, or an equivalent any substantially similar offense
in under the laws of another state jurisdiction, if
(i) the person has been granted a simple pardon if the offense was a felony
committed in Virginia, or the equivalent if the offense person
was committed in convicted under the laws of another state
jurisdiction; (ii) more than 10 years have elapsed since the conviction;
and (iii) the hiring provider determines, based upon a screening assessment,
that the criminal behavior was substantially related to the applicant's substance
abuse and that the person has been successfully rehabilitated and is not a risk
to individuals receiving services based on his criminal history background and
his substance abuse history.
E. The hiring provider and a screening contractor designated by the Department shall screen applicants who meet the criteria set forth in subsections C and D to assess whether the applicants have been rehabilitated successfully and are not a risk to individuals receiving services based on their criminal history backgrounds and substance abuse or mental illness histories. To be eligible for such screening, the applicant shall have completed all prison or jail terms, shall not be under probation or parole supervision, shall have no pending charges in any locality, shall have paid all fines, restitution, and court costs for any prior convictions, and shall have been free of parole or probation for at least five years for all convictions. In addition to any supplementary information the provider or screening contractor may require or the applicant may wish to present, the applicant shall provide to the screening contractor a statement from his most recent probation or parole officer, if any, outlining his period of supervision and a copy of any pre-sentencing or post-sentencing report in connection with the felony conviction. The cost of this screening shall be paid by the applicant, unless the licensed provider decides to pay the cost.
F. Notwithstanding the provisions of subsection B, a provider may hire for compensated employment persons who have been convicted of not more than one misdemeanor offense under §18.2-57 or 18.2-57.2, or any substantially similar offense under the laws of another jurisdiction, if 10 years have elapsed following the conviction, unless the person committed the offense while employed in a direct care position.
G. Providers licensed pursuant to this article also shall require, as a condition of employment, approval as a sponsored residential service provider, or permission to enter into a shared living arrangement with a person receiving medical assistance services pursuant to a waiver, written consent and personal information necessary to obtain a search of the registry of founded complaints of child abuse and neglect that is maintained by the Department of Social Services pursuant to §63.2-1515.
H. The cost of obtaining the criminal history record and search of the child abuse and neglect registry record shall be borne by the applicant, unless the provider licensed pursuant to this article decides to pay the cost.
I. A person who complies in good faith with the provisions of this section shall not be liable for any civil damages for any act or omission in the performance of duties under this section unless the act or omission was the result of gross negligence or willful misconduct.
§37.2-506. Background checks required.
A. As used in this section:
"Direct care position" means any position that includes responsibility for (i) treatment, case management, health, safety, development, or well-being of an individual receiving services or (ii) immediately supervising a person in a position with this responsibility.
"Hire for compensated employment" does not include (i) a promotion from one adult substance abuse or adult mental health treatment position to another such position within the same community services board or (ii) new employment in an adult substance abuse or adult mental health treatment position in another office or program of the same community services board if the person employed prior to July 1, 1999, had no convictions in the five years prior to the application date for employment. "Hire for compensated employment" includes (a) a promotion or transfer from an adult substance abuse treatment position to any mental health or developmental services direct care position within the same community services board or (b) new employment in any mental health or developmental services direct care position in another office or program of the same community services board for which the person has previously worked in an adult substance abuse treatment position.
"Shared living" means an arrangement in which the Commonwealth's program of medical assistance pays a portion of a person's rent, utilities, and food expenses in return for the person residing with and providing companionship, support, and other limited, basic assistance to a person with intellectual or developmental disabilities receiving medical assistance services in accordance with a waiver for whom he has no legal responsibility.
B. Every community services board shall require (i) any
applicant who accepts employment in any direct care position with the community
services board, (ii) any applicant for approval as a sponsored residential
service provider, (iii) any adult living in the home of an applicant for
approval as a sponsored residential service provider, (iv) any person employed
by a sponsored residential service provider to provide services in the home,
and (v) any person who enters into a shared living arrangement with a person
receiving medical assistance services pursuant to a waiver to submit to
fingerprinting and provide personal descriptive information to be forwarded
through the Central Criminal Records Exchange to the Federal Bureau of
Investigation (FBI) for the purpose of obtaining national criminal history
record information regarding the applicant. Except as otherwise provided in
subsection C, D, or F, no community services board shall hire for compensated
employment, approve as a sponsored residential service provider, or permit to
enter into a shared living arrangement with a person receiving medical
assistance services pursuant to a waiver persons who have been convicted of
(a) any offense listed in subsection B of §37.2-314 set forth in
clause (i) or (ii) of the definition of barrier crime in §19.2-392.02; (b) any
offense set forth in clause (iii) of the definition of barrier crime in §
19.2-392.02; or (c) any offense set forth in clause (iv) of the definition of
barrier crime in §19.2-392.02 in the five years prior to the application date
for employment or continue on probation or parole or have failed to pay
required court costs for such offense set forth in clause (iv) of the
definition of barrier crime in §19.2-392.02.
The Central Criminal Records Exchange, upon receipt of an applicant's record or notification that no record exists, shall submit a report to the requesting executive director or personnel director of the community services board. If any applicant is denied employment because of information appearing on his criminal history record and the applicant disputes the information upon which the denial was based, the Central Criminal Records Exchange shall, upon written request, furnish to the applicant the procedures for obtaining a copy of the criminal history record from the FBI. The information provided to the executive director or personnel director of any community services board shall not be disseminated except as provided in this section.
C. Notwithstanding the provisions of subsection B, the
community services board may hire for compensated employment at adult substance
abuse or adult mental health treatment programs a person who was convicted of
(i) a misdemeanor violation relating to (i) unlawful hazing, as set out
in of §18.2-56; (ii) reckless handling of a firearm, as set out
in § or 18.2-56.1; (iii) assault and battery, as set out in,
subsection A of §18.2-57; or (iv) assault and battery against a family or
household member, as set out in subsection A of, or §18.2-57.2;
or (ii) any misdemeanor or felony violation related to (a)
reckless endangerment of others by throwing objects, as set out in of
§18.2-51.3; (b) threat, as set out in §, 18.2-60; (c)
breaking and entering a dwelling house with intent to commit other misdemeanor,
as set out in §, 18.2-92; or (d) possession of burglarious tools,
as set out in §, or 18.2-94; or (iii) any felony
violation relating to the distribution of drugs, as set out in Article 1 (§
18.2-247 et seq.) of Chapter 7 of Title 18.2 offense set forth in clause
(iii) of the definition of barrier crime in §19.2-392.02, except an
offense pursuant to subsection H1 or H2 of §18.2-248; or an equivalent
(iv) any substantially similar offense in under the laws of
another state jurisdiction, if the hiring community services
board determines, based upon a screening assessment, that the criminal behavior
was substantially related to the applicant's substance abuse or mental illness
and that the person has been successfully rehabilitated and is not a risk to
individuals receiving services based on his criminal history background and his
substance abuse or mental illness history.
D. Notwithstanding the provisions of subsection B, the
community services board may hire for compensated employment at adult substance
abuse treatment programs a person who has been convicted of not more than one
offense of assault and battery of a law-enforcement officer under
subsection C of §18.2-57, or an equivalent any substantially
similar offense in under the laws of another state
jurisdiction, if (i) the person has been granted a simple pardon if the
offense was a felony committed in Virginia, or the equivalent if the offense
person was committed in convicted under the laws of another
state jurisdiction; (ii) more than 10 years have elapsed since the
conviction; and (iii) the hiring community services board determines, based
upon a screening assessment, that the criminal behavior was substantially
related to the applicant's substance abuse and that the person has been
successfully rehabilitated and is not a risk to individuals receiving services
based on his criminal history background and his substance abuse history.
E. The community services board and a screening contractor designated by the Department shall screen applicants who meet the criteria set forth in subsections C and D to assess whether the applicants have been rehabilitated successfully and are not a risk to individuals receiving services based on their criminal history backgrounds and substance abuse or mental illness histories. To be eligible for such screening, the applicant shall have completed all prison or jail terms, shall not be under probation or parole supervision, shall have no pending charges in any locality, shall have paid all fines, restitution, and court costs for any prior convictions, and shall have been free of parole or probation for at least five years for all convictions. In addition to any supplementary information the community services board or screening contractor may require or the applicant may wish to present, the applicant shall provide to the screening contractor a statement from his most recent probation or parole officer, if any, outlining his period of supervision and a copy of any pre-sentencing or post-sentencing report in connection with the felony conviction. The cost of this screening shall be paid by the applicant, unless the board decides to pay the cost.
F. Notwithstanding the provisions of subsection B, a community services board may hire for compensated employment persons who have been convicted of not more than one misdemeanor offense under §18.2-57 or 18.2-57.2, or any substantially similar offense under the laws of another jurisdiction, if 10 years have elapsed following the conviction, unless the person committed the offense while employed in a direct care position.
G. Community services boards also shall require, as a condition of employment, approval as a sponsored residential service provider, or permission to enter into a shared living arrangement with a person receiving medical assistance services pursuant to a waiver, written consent and personal information necessary to obtain a search of the registry of founded complaints of child abuse and neglect that is maintained by the Department of Social Services pursuant to §63.2-1515.
H. The cost of obtaining the criminal history record and search of the child abuse and neglect registry record shall be borne by the applicant, unless the community services board decides to pay the cost.
I. A person who complies in good faith with the provisions of this section shall not be liable for any civil damages for any act or omission in the performance of duties under this section unless the act or omission was the result of gross negligence or willful misconduct.
§63.2-901.1. Criminal history and central registry check for placements of children.
A. Each local board and licensed child-placing agency shall obtain, in accordance with regulations adopted by the Board, criminal history record information from the Central Criminal Records Exchange and the Federal Bureau of Investigation through the Central Criminal Records Exchange and the results of a search of the child abuse and neglect central registry of any individual with whom the local board or licensed child-placing agency is considering placing a child on an emergency, temporary or permanent basis, including the birth parent of a child in foster care placement, unless the birth parent has revoked an entrustment agreement pursuant to §63.2-1223 or 63.2-1817 or a local board or birth parent revokes a placement agreement while legal custody remains with the parent, parents, or guardians pursuant to § 63.2-900. The local board or licensed child-placing agency shall also obtain such background checks on all adult household members residing in the home of the individual with whom the child is to be placed pursuant to subsection B. Such state criminal records or registry search shall be at no cost to the individual. The local board or licensed child-placing agency shall pay for the national fingerprint criminal history record check or may require such individual to pay the cost of the fingerprinting or the national fingerprinting criminal history record check or both. In addition to the fees assessed by the Federal Bureau of Investigation, the designated state agency may assess a fee for responding to requests required by this section.
B. Background checks pursuant to this section require the following:
1. A sworn statement or affirmation disclosing whether or not the individual has a criminal conviction or is the subject of any pending criminal charges within or outside the Commonwealth and whether or not the individual has been the subject of a founded complaint of child abuse or neglect within or outside the Commonwealth;
2. That the individual submit to fingerprinting and provide personal descriptive information to be forwarded along with the individual's fingerprints through the Central Criminal Records Exchange to the Federal Bureau of Investigation for the purpose of obtaining criminal history record information. The local board or licensed child-placing agency shall inform the individual that he is entitled to obtain a copy of any background check report and to challenge the accuracy and completeness of any such report and obtain a prompt resolution before a final decision is made of the individual's fitness to have responsibility for the safety and well-being of children.
The Central Criminal Records Exchange, upon receipt of an
individual's record or notification that no record exists, shall forward it to the
designated state agency. The state agency shall, upon receipt of an
individual's record lacking disposition data, conduct research in whatever
state and local recordkeeping systems are available in order to obtain complete
data. The state agency shall report to the local board or licensed
child-placing agency whether the individual meets the criteria for having
responsibility for the safety and well-being of children based on whether or
not the individual has ever been convicted of or is the subject of pending
charges set forth for any barrier crime as defined in §
63.2-1719 or an equivalent set forth in another state 19.2-392.02.
Copies of any information received by a local board or licensed child-placing agency
pursuant to this section shall be available to the state agency that regulates
or operates such a child-placing agency but shall not be disseminated further;
and
3. A search of the central registry maintained pursuant to § 63.2-1515 for any founded complaint of child abuse or neglect. In addition, a search of the child abuse and neglect registry maintained by any other state pursuant to the Adam Walsh Child Protection and Safety Act of 2006, Pub. L. 109-248, in which a prospective parent or other adult in the home has resided in the preceding five years.
C. In emergency circumstances, each local board may obtain, from a criminal justice agency, criminal history record information from the Central Criminal Records Exchange and the Federal Bureau of Investigation through the Virginia Criminal Information Network (VCIN) for the criminal records search authorized by this section. Within three days of placing a child, the local board shall require the individual for whom a criminal history record information check was requested to submit to fingerprinting and provide personal descriptive information to be forwarded along with the fingerprints through the Central Criminal Records Exchange to the Federal Bureau of Investigation for the purpose of obtaining criminal record history information, pursuant to subsection B. The child shall be removed from the home immediately if any adult resident fails to provide such fingerprints and written permission to perform a criminal history record check when requested.
D. Any individual with whom the local board is considering placing a child on an emergency basis shall submit to a search of the central registry maintained pursuant to §63.2-1515 and the Adam Walsh Child Protection and Safety Act of 2006, Pub. L. 109-248 for any founded complaint of child abuse or neglect. The search of the central registry must occur prior to emergency placement. Such central registry search shall be at no cost to the individual. Prior to emergency placement, the individual shall provide a written statement of affirmation disclosing whether he has ever been the subject of a founded case of child abuse or neglect within or outside the Commonwealth. Child-placing agencies shall not approve individuals with a founded complaint of child abuse as foster or adoptive parents.
E. The child-placing agency shall not approve a foster or
adoptive home if any individual has a record of an offense been
convicted of any barrier crime as defined in § 63.2-1719
19.2-392.02 or is the subject of a founded complaint of abuse or
neglect as maintained in registries pursuant to §63.2-1515 and 42 U.S.C.S.
16901 et seq. A child-placing agency may approve as a foster parent an
applicant who has been convicted of not more than one misdemeanor as set
out in §18.2-57, or any substantially similar offense under the laws of
another jurisdiction, not involving the abuse, neglect, or moral turpitude
of a minor, provided that 10 years have elapsed following the
conviction.
F. A local board or child-placing agency may approve as a
kinship foster care parent an applicant who has been convicted of the
following offenses, provided that 10 years have elapsed from the date of the
conviction and the local board or child-placing agency makes a specific finding
that approving the kinship foster care placement would not adversely affect the
safety and well-being of the child: (i) a felony conviction for possession
of drugs as set out in Article 1 (§18.2-247 et seq.) of Chapter 7 of Title
18.2, but not including a felony conviction for possession of drugs with the
intent to distribute; any offense set forth in clause (iv) of the
definition of barrier crime in §19.2-392.02 or (ii) a any
misdemeanor conviction for arson as set out in Article 1 (§18.2-77 et seq.)
of Chapter 5 of Title 18.2; or (iii) an equivalent offense under §
18.2-80, 18.2-81, 18.2-83, 18.2-87, 18.2-87.1, or 18.2-88 or any substantially
similar offense in under the laws of another state
jurisdiction.
§63.2-1601.1. Criminal history check for agency approved providers of services to adults.
A. Each local board shall obtain, in accordance with
regulations adopted by the Board, criminal history record information from the
Central Criminal Records Exchange of any individual the local board is
considering approving as a provider of home-based services pursuant to §
63.2-1600 or adult foster care pursuant to §63.2-1601. The local board may
also obtain such a criminal records search on all adult household members
residing in the home of the individual with whom the adult is to be placed. The
local board shall not hire for compensated employment any persons who have been
convicted of an any offense as defined set forth in
clause (i) of the definition of barrier crime in § 63.2-1719
19.2-392.02. If approval as an agency approved agency-approved
provider is denied because of information obtained through a Central Criminal
Records Exchange search, the local board, upon request, shall provide a copy of
the information obtained to the individual who is the subject of the search.
Further dissemination of the criminal history record information is prohibited.
B. In emergency circumstances, each local board may obtain
from a criminal justice agency the criminal history record information from the
Central Criminal Records Exchange for the criminal records search authorized by
this section. The provision of home-based services shall be immediately
terminated or the adult shall be removed from the home immediately, if any
adult resident has been convicted of a any offense set forth in
clause (i) of the definition of barrier crime as described in §
63.2-1719 19.2-392.02.
§63.2-1717. Certification of preschool or nursery school programs operated by accredited private schools; provisional certification; annual statement and documentary evidence required; enforcement; injunctive relief.
A. A preschool or nursery school program operated by a private school accredited by a statewide accrediting organization recognized by the Board of Education or a private school or preschool that offers to preschool-aged children a program accredited by the National Association for the Education of Young Children's National Academy of Early Childhood Programs; the Association of Christian Schools International; the American Association of Christian Schools; the National Early Childhood Program Accreditation; the National Accreditation Council for Early Childhood Professional Personnel and Programs; the International Academy for Private Education; the American Montessori Society; the International Accreditation and Certification of Childhood Educators, Programs, and Trainers; or the National Accreditation Commission and is recognized by the Board of Education, shall be exempt from licensure under this subtitle if it complies with the provisions of this section and meets the requirements of subsection B, C or D.
B. A school described in subsection A shall meet the following conditions in order to be exempt under this subsection:
1. The school offers kindergarten or elementary school instructional programs that satisfy compulsory school attendance laws, and children below the age of compulsory school attendance also participate in such instructional programs;
2. The instructional programs for children of and below the age of eligibility for school attendance share (i) a specific verifiable common pedagogy, (ii) education materials, (iii) methods of instruction, and (iv) professional training and individual teacher certification standards, all of which are required by a state-recognized accrediting organization;
3. The instructional programs described in subdivisions 1 and 2 have mixed age groups of three-year-old to six-year-old children and the number of pupils in the preschool program does not exceed 15 pupils for each instructional adult;
4. The instructional program contemplates a three-to-four-year learning cycle under a common pedagogy; and
5. Children below the age of eligibility for kindergarten attendance do not attend the instructional program for more than four hours per day.
C. A school described in subsection A shall be exempt from licensure if it maintains an enrollment ratio at any one time during the current school year of five children age five or above to one four-year-old child as long as no child in attendance is under age four and the number of pupils in the preschool program does not exceed 12 pupils for each instructional adult.
D. A private school or preschool described in subsection A shall meet the following conditions in order to be exempt under this subsection:
1. The school offers instructional classes and has been in operation since January 1984.
2. The school does not hold itself out as a child care center, child day center, or child day program.
3. Children enrolled in the school are at least three years of age and do not attend more than (i) three hours per day and (ii) five days per week.
4. The enrolled children attend only one program offered by the school per day.
5. The school maintains a certificate or permit issued pursuant to a local government ordinance that addresses health, safety and welfare of the children, such as but not limited to space requirements, and requires annual inspections.
E. The school shall file with the Commissioner, prior to the beginning of the school year or calendar year, as the case may be, and thereafter, annually, a statement which includes the following:
1. Intent to operate a certified preschool program;
2. Documentary evidence that the school has been accredited as provided in subsection A;
3. Documentation that the school has disclosed in writing to the parents, guardians, or persons having charge of a child enrolled in the school's preschool program the fact of the program's exemption from licensure;
4. Documentary evidence that the physical facility in which the preschool program will be conducted has been inspected (i) before initial certification by the local building official and (ii) within the 12-month period prior to initial certification and at least annually thereafter by the local health department, and local fire marshal or Office of the State Fire Marshal, whichever is appropriate, and an inspection report which documents that the facility is in compliance with applicable laws and regulations pertaining to food services, health and sanitation, water supply, building codes, and the Statewide Fire Prevention Code or the Uniform Statewide Building Code;
5. Documentation that the school has disclosed the following in writing to the parents, guardians, or persons having charge of a child enrolled in the school's preschool program, and in a written statement available to the general public: (i) the school facility is in compliance with applicable laws and regulations pertaining to food services, health and sanitation, water supply, building codes, and the Statewide Fire Prevention Code or the Uniform Statewide Building Code, (ii) the preschool program's maximum capacity, (iii) the school's policy or practice for pupil-teacher ratio, staffing patterns and staff health requirements, and (iv) a description of the school's public liability insurance, if any;
6. Qualifications of school personnel who work in the preschool program; and
7. Documentary evidence that the private school requires all
employees of the preschool and other school employees who have contact with the
children enrolled in the preschool program to obtain a criminal record check as
provided in subdivision A 11 of §19.2-389 as a condition of initial or
continued employment. The school shall not hire or continue employment of any
such person who (i) has an offense specified been convicted of
a barrier crime as defined in § 63.2-1719 19.2-392.02 or (ii) is
the subject of a founded complaint of child abuse or neglect within or outside
the Commonwealth.
All accredited private schools seeking certification of preschool programs shall file such information on forms prescribed by the Commissioner. The Commissioner shall certify all preschool programs of accredited private schools which comply with the provisions of subsection A.
F. A preschool program of a private school that has not been accredited as provided in subsection A, or which has not provided documentation to the Commissioner that it has initiated the accreditation process, shall be subject to licensure.
The Commissioner shall issue a provisional certificate to a private school which provides documentation to the Commissioner that it has initiated the accreditation process. The provisional certificate shall permit the school to operate its preschool program during the accreditation process period. The issuance of an initial provisional certificate shall be for a period not to exceed one year. A provisional certificate may be renewed up to an additional year if the accrediting organization provides a statement indicating it has visited the school within the previous six months and the school has made sufficient progress. Such programs shall not be subject to licensure during the provisional certification period.
G. If a school fails to complete the accreditation process or is denied accreditation, the Commissioner shall revoke the provisional certification and the program shall thereafter be subject to licensure.
H. If the preschool program of a private school which is accredited as provided in subsection A fails to file the statement and the required documentary evidence, the Commissioner shall notify the school of its noncompliance and may thereafter take such action as he determines appropriate, including notice that the program is required to be licensed.
I. The revocation or denial of the certification of a preschool program shall be subject to appeal pursuant to the provisions of the Administrative Process Act (§2.2-4000 et seq.). Judicial review of a final agency decision shall be in accordance with the provisions of the Administrative Process Act.
J. Any person who has reason to believe that a private school falling within the provisions of this section is in noncompliance with any applicable requirement of this section may report the same to the Department, the local department, the local health department, or the local fire marshal, each of which may inspect the school for noncompliance, give reasonable notice to the school of the nature of its noncompliance, and thereafter may take appropriate action as provided by law, including a suit to enjoin the operation of the preschool program.
K. Upon receipt of a complaint concerning a certified preschool program of an accredited private school, or of a private school to which provisional certification has been issued, if for good cause shown there is reason to suspect that the school is in noncompliance with any provision of this section or the health or safety of the children attending the preschool program is in danger, the Commissioner shall cause an investigation to be made, including on-site visits as he deems necessary of the services, personnel, and facilities of the school's program. The school shall afford the Commissioner reasonable opportunity to inspect the school's program, records, and facility, and to interview the employees and any child or parent or guardian of a child who is or has been enrolled in the preschool program. If, upon completion of the investigation, it is determined that the school is in noncompliance with the provisions of this section, the Commissioner shall give reasonable notice to the school of the nature of its noncompliance and thereafter may take appropriate action as provided by law, including a suit to enjoin the operation of the preschool program.
L. Failure of a private school to comply with the provisions of this section, or a finding that the health and safety of the children attending the preschool program are in clear and substantial danger upon the completion of an investigation, shall be grounds for revocation of the certification issued pursuant to this section.
M. If a private school operates a child day program outside the scope of its instructional classes during the school year or operates a child day program during the summer, the child day program shall be subject to licensure under the regulations adopted pursuant to §63.2-1734.
N. Nothing in this section shall prohibit a preschool operated by or conducted under the auspices of a private school from obtaining a license pursuant to this subtitle.
§63.2-1719. Barrier crime; construction.
As used in this subtitle:
"Barrier crime" means a conviction of a felony
violation of a protective order as set out in §16.1-253.2, murder or
manslaughter as set out in Article 1 (§18.2-30 et seq.) of Chapter 4 of Title
18.2, malicious wounding by mob as set out in §18.2-41, abduction as set out
in subsection A or B of §18.2-47, abduction for immoral purposes as set out in
§18.2-48, assaults and bodily woundings as set out in Article 4 (§18.2-51 et
seq.) of Chapter 4 of Title 18.2, robbery as set out in §18.2-58, carjacking
as set out in §18.2-58.1, extortion by threat as set out in §18.2-59, threats
of death or bodily injury as set out in §18.2-60, felony stalking as set out
in §18.2-60.3, a felony violation of a protective order as set out in §
18.2-60.4, sexual assault as set out in Article 7 (§18.2-61 et seq.) of
Chapter 4 of Title 18.2, arson as set out in Article 1 (§18.2-77 et seq.) of
Chapter 5 of Title 18.2, drive by shooting as set out in §18.2-286.1, use of a
machine gun in a crime of violence as set out in §18.2-289, aggressive use of
a machine gun as set out in §18.2-290, use of a sawed-off shotgun in a crime
of violence as set out in subsection A of §18.2-300, pandering as set out in §
18.2-355, crimes against nature involving children as set out in §18.2-361,
incest as set out in §18.2-366, taking indecent liberties with children as set
out in §18.2-370 or 18.2-370.1, abuse and neglect of children as set out in §
18.2-371.1, failure to secure medical attention for an injured child as set out
in §18.2-314, obscenity offenses as set out in §18.2-374.1, possession of
child pornography as set out in §18.2-374.1:1, electronic facilitation of
pornography as set out in §18.2-374.3, abuse and neglect of incapacitated
adults as set out in §18.2-369, employing or permitting a minor to assist in an
act constituting an offense under Article 5 (§18.2-372 et seq.) of Chapter 8
of Title 18.2 as set out in §18.2-379, delivery of drugs to prisoners as set
out in §18.2-474.1, escape from jail as set out in §18.2-477, felonies by
prisoners as set out in §53.1-203, or an equivalent offense in another state.
In the case of child welfare agencies and foster and adoptive homes approved by
child-placing agencies, "barrier crime" shall also include
convictions of burglary as set out in Article 2 (§18.2-89 et seq.) of Chapter
5 of Title 18.2 and any felony violation relating to possession or distribution
of drugs as set out in Article 1 (§18.2-247 et seq.) of Chapter 7 of Title
18.2, or an equivalent offense in another state.
"Offense" means a barrier crime and, in the case
of child welfare agencies and foster and adoptive homes approved by
child-placing agencies, (i) a conviction of any offense set forth in §9.1-902
or a finding that a person is not guilty by reason of insanity in accordance
with Chapter 11.1 (§19.2-182.2 et seq.) of Title 19.2 of an offense set forth
in §9.1-902 that results in the person's requirement to register with the Sex
Offender and Crimes Against Minors Registry pursuant to §9.1-901, or any
similar registry in any other state; (ii) a conviction of any other felony not
included in the definition of barrier crime or described in clause (i) unless
five years have elapsed since conviction; and (iii) a founded complaint of
child abuse or neglect within or outside the Commonwealth. In For
purposes of this chapter, in the case of child welfare agencies and foster
and adoptive homes approved by child-placing agencies, convictions for any
barrier crime as defined in §19.2-392.02 shall include prior adult
convictions and juvenile convictions or adjudications of delinquency based on a
crime that would be a felony if committed by an adult within or outside the
Commonwealth.
§63.2-1720. (Effective until July 1, 2017) Employment for compensation of persons or use of volunteers convicted of certain offenses prohibited; background check required; penalty.
A. An assisted living facility, or adult day
care center or child welfare agency licensed or registered in accordance
with the provisions of this chapter, or family day homes approved by family
day systems, shall not hire for compensated employment or continue to
employ persons who have an been convicted of any offense as
defined set forth in clause (i) of the definition of barrier crime
in § 63.2-1719 19.2-392.02. A child welfare agency licensed or
registered in accordance with the provisions of this chapter, or family day
home approved by a family day system, shall not hire for compensated employment
or continue to employ persons who (i) have been convicted of any barrier crime
as defined in §19.2-392.02 or (ii) are the subject of a founded complaint of
child abuse or neglect within or outside the Commonwealth. Such employees
shall undergo background checks pursuant to subsection D. In the case of child
welfare agencies, the provisions of this section shall apply to employees who
are involved in the day-to-day operations of such agency or who are alone with,
in control of, or supervising one or more children.
B. A licensed assisted living facility or adult day care center may hire an applicant who has been convicted of one misdemeanor barrier crime not involving abuse or neglect, or any substantially similar offense under the laws of another jurisdiction, if five years have elapsed following the conviction.
C. Notwithstanding the provisions of subsection A, a child day center may hire for compensated employment persons who have been convicted of not more than one misdemeanor offense under §18.2-57, or any substantially similar offense under the laws of another jurisdiction, if 10 years have elapsed following the conviction, unless the person committed such offense while employed in a child day center or the object of the offense was a minor.
D. Background checks pursuant to this section require:
1. A sworn statement or affirmation disclosing whether the person has a criminal conviction or is the subject of any pending criminal charges within or outside the Commonwealth and, in the case of child welfare agencies, whether or not the person has been the subject of a founded complaint of child abuse or neglect within or outside the Commonwealth;
2. A criminal history record check through the Central Criminal Records Exchange pursuant to §19.2-389; and
3. In the case of child welfare agencies, a search of the central registry maintained pursuant to §63.2-1515 for any founded complaint of child abuse and neglect.
E. Any person desiring to work as a compensated employee at a
licensed assisted living facility, licensed adult day care center, a licensed
or registered child welfare agency, or a family day home approved by a family
day system shall provide the hiring or approving facility, center or agency
with a sworn statement or affirmation pursuant to subdivision D 1. Any person
making a materially false statement regarding the sworn statement or affirmation
provided pursuant to subdivision D 1 shall be is guilty of a
Class 1 misdemeanor.
F. A licensed assisted living facility, licensed adult day
care center, a licensed or registered child welfare agency, or a family day
home approved by a family day system shall obtain for any compensated employees
within 30 days of employment (i) an original criminal record clearance with
respect to convictions for offenses specified any barrier crime as
defined in § 63.2-1719 19.2-392.02 or an original criminal
history record from the Central Criminal Records Exchange and (ii) in the case
of licensed or registered child welfare agencies or family day homes approved
by family day systems, a copy of the information from the central registry.
However, no employee shall be permitted to work in a position that involves
direct contact with a person or child receiving services until an original
criminal record clearance or original criminal history record has been
received, unless such person works under the direct supervision of another
employee for whom a background check has been completed in accordance with the
requirements of this section. If an applicant is denied employment because of
information from the central registry or convictions appearing on his criminal
history record, the assisted living facility, adult day care center or child
welfare agency shall provide a copy of the information obtained from the
central registry or the Central Criminal Records Exchange or both to the
applicant.
G. No volunteer who (i) has an offense been
convicted of any barrier crime as defined in § 63.2-1719
19.2-392.02 or (ii) is the subject of a founded complaint of child abuse or
neglect within or outside the Commonwealth shall be permitted to serve in a
licensed or registered child welfare agency or a family day home approved by a
family day system. Any person desiring to volunteer at such a child welfare
agency shall provide the agency with a sworn statement or affirmation pursuant
to subdivision D 1. Such child welfare agency shall obtain for any volunteers,
within 30 days of commencement of volunteer service, a copy of (i)
(a) the information from the central registry and (ii) (b) an
original criminal record clearance with respect to offenses specified
any barrier crime defined in § 63.2-1719 19.2-392.02 or an
original criminal history record from the Central Criminal Records Exchange.
Any person making a materially false statement regarding the sworn statement or
affirmation provided pursuant to subdivision D 1 shall be is
guilty of a Class 1 misdemeanor. If a volunteer is denied service because of
information from the central registry or convictions appearing on his criminal
history record, such child welfare agency shall provide a copy of the
information obtained from the central registry or the Central Criminal Records
Exchange or both to the volunteer. The provisions of this subsection shall
apply only to volunteers who will be alone with any child in the performance of
their duties and shall not apply to a parent-volunteer of a child attending a
licensed or registered child welfare agency, or a family day home approved by a
family day system, whether or not such parent-volunteer will be alone with any
child in the performance of his duties. A parent-volunteer is someone
supervising, without pay, a group of children that includes the
parent-volunteer's own child in a program that operates no more than four hours
per day, provided that the parent-volunteer works under the direct supervision
of a person who has received a clearance pursuant to this section.
H. No volunteer shall be permitted to serve in a licensed assisted living facility or licensed adult day care center without the permission or under the supervision of a person who has received a clearance pursuant to this section.
I. Further dissemination of the background check information is prohibited other than to the Commissioner's representative or a federal or state authority or court as may be required to comply with an express requirement of law for such further dissemination.
J. A licensed assisted living facility shall notify and provide all students a copy of the provisions of this article prior to or upon enrollment in a certified nurse aide program operated by such assisted living facility.
K. The provisions of this section shall not apply to any children's residential facility licensed pursuant to §63.2-1701, which instead shall comply with the background investigation requirements contained in § 63.2-1726.
L. A person who complies in good faith with the provisions of this section shall not be liable for any civil damages for any act or omission in the performance of duties under this section unless the act or omission was the result of gross negligence or willful misconduct.
§63.2-1720. (Effective July 1, 2017) Assisted living facilities and adult day care centers; employment for compensation of persons or use of volunteers convicted of certain offenses prohibited; background check required; penalty.
A. No assisted living facility, or adult day
care center, child-placing agency, independent foster home, or family day
system licensed in accordance with the provisions of this chapter, or
registered family day homes or family day homes approved by family day systems,
shall hire for compensated employment or continue to employ persons who have
an been convicted of any offense as defined set forth in
clause (i) of the definition of barrier crime in § 63.2-1719
19.2-392.02. A child-placing agency, independent foster home, or family day
system licensed in accordance with the provisions of this chapter, or a
registered family day home or family day home approved by a family day system,
shall not hire for compensated employment or continue to employ persons who (i)
have been convicted of any barrier crime as defined in §19.2-392.02 or (ii)
are the subject of a founded complaint of child abuse or neglect within or
outside the Commonwealth. All applicants for employment shall undergo
background checks pursuant to subsection C.
B. A licensed assisted living facility or adult day care center may hire an applicant who has been convicted of one misdemeanor barrier crime, or any substantially similar offense under the laws of another jurisdiction, not involving abuse or neglect, if five years have elapsed following the conviction.
C. Background checks pursuant to subsection A require:
1. A sworn statement or affirmation disclosing whether the person has a criminal conviction or is the subject of any pending criminal charges within or outside the Commonwealth and, in the case of licensed child-placing agencies, independent foster homes, and family day systems, registered family day homes, and family day homes approved by family day systems, whether or not the person has been the subject of a founded complaint of child abuse or neglect within or outside the Commonwealth;
2. A criminal history records check through the Central Criminal Records Exchange pursuant to §19.2-389; and
3. In the case of licensed child-placing agencies, independent foster homes, and family day systems, registered family day homes, and family day homes approved by family day systems, a search of the central registry maintained pursuant to §63.2-1515 for any founded complaint of child abuse and neglect.
D. Any person making a materially false statement regarding the sworn statement or affirmation provided pursuant to subdivision C 1 is guilty of a Class 1 misdemeanor.
E. A licensed assisted living facility, licensed adult day
care center, licensed child-placing agency, licensed independent foster home,
licensed family day system, registered family day home, or family day home
approved by a family day system shall obtain for any compensated employees
within 30 days of employment (i) an original criminal record clearance with
respect to convictions for offenses specified any barrier crime as
defined in § 63.2-1719 19.2-392.02 or an original criminal
history record from the Central Criminal Records Exchange and (ii) in the case
of licensed child-placing agencies, independent foster homes, and family day
systems, registered family day homes, and family day homes approved by family
day systems, a copy of the information from the central registry for any
compensated employee within 30 days of employment. However, no employee shall
be permitted to work in a position that involves direct contact with a person
or child receiving services until an original criminal record clearance or
original criminal history record has been received, unless such person works
under the direct supervision of another employee for whom a background check
has been completed in accordance with the requirements of this section. If an
applicant is denied employment because of information from the central registry
or convictions appearing on his criminal history record, the licensed assisted
living facility, adult day care center, child-placing agency, independent
foster home, or family day system, registered family day home, or family day
home approved by a family day system shall provide a copy of the information
obtained from the central registry or the Central Criminal Records Exchange or
both to the applicant.
F. No volunteer who (i) has an offense been
convicted of any barrier crime as defined in § 63.2-1719
19.2-392.02 or (ii) is the subject of a founded complaint of child abuse or
neglect within or outside the Commonwealth shall be permitted to serve in a
licensed child-placing agency, independent foster home, or family day system,
registered family day home, or family day home approved by a family day system.
Any person desiring to volunteer at a licensed child-placing agency,
independent foster home, or family day system, registered family day home, or
family day home approved by a family day system shall provide the agency,
system, or home with a sworn statement or affirmation pursuant to subdivision C
1. Such licensed child-placing agency, independent foster home, or family day
system, registered family day home, or family day home approved by a family day
system shall obtain for any volunteers, within 30 days of commencement of
volunteer service, a copy of (i) (a) the information from the
central registry and (ii) (b) an original criminal record
clearance with respect to offenses specified any barrier crime as
defined in § 63.2-1719 19.2-392.02 or an original criminal
history record from the Central Criminal Records Exchange. Any person making a
materially false statement regarding the sworn statement or affirmation
provided pursuant to subdivision C 1 is guilty of a Class 1 misdemeanor. If a
volunteer is denied service because of information from the central registry or
convictions appearing on his criminal history record, such licensed
child-placing agency, independent foster home, or family day system, registered
family day home, or family day home approved by a family day system shall
provide a copy of the information obtained from the central registry or the
Central Criminal Records Exchange or both to the volunteer. The provisions of
this subsection shall apply only to volunteers who will be alone with any child
in the performance of their duties and shall not apply to a parent-volunteer of
a child attending a licensed child-placing agency, independent foster home, or
family day system, registered family day home, or family day home approved by a
family day system, whether or not such parent-volunteer will be alone with any
child in the performance of his duties. A parent-volunteer is someone
supervising, without pay, a group of children that includes the
parent-volunteer's own child in a program that operates no more than four hours
per day, provided that the parent-volunteer works under the direct supervision
of a person who has received a clearance pursuant to this section.
G. No volunteer shall be permitted to serve in a licensed assisted living facility or licensed adult day care center without the permission or under the supervision of a person who has received a clearance pursuant to this section.
H. Further dissemination of the background check information is prohibited other than to the Commissioner's representative or a federal or state authority or court as may be required to comply with an express requirement of law for such further dissemination.
I. A licensed assisted living facility shall notify and provide all students a copy of the provisions of this article prior to or upon enrollment in a certified nurse aide program operated by such assisted living facility.
J. A person who complies in good faith with the provisions of this section shall not be liable for any civil damages for any act or omission in the performance of duties under this section unless the act or omission was the result of gross negligence or willful misconduct.
§63.2-1720.1. (Effective July 1, 2017) Licensed child day centers and licensed family day homes; employment for compensation or use as volunteers of persons convicted of or found to have committed certain offenses prohibited; national background check required; penalty.
A. No child day center or family day home licensed in
accordance with the provisions of this chapter shall hire for compensated
employment, continue to employ, or permit to serve as a volunteer in a position
that is involved in the day-to-day operations of the child day center or family
day home or in which the employee or volunteer will be alone with, in control
of, or supervising children any person who (i) has an offense
been convicted of any barrier crime as defined in § 63.2-1719
19.2-392.02 or (ii) is the subject of a founded complaint of child abuse or
neglect within or outside the Commonwealth. All applicants for employment
or to serve as volunteers shall undergo a background check in accordance with
subsection B.
B. Any applicant required to undergo a background check in accordance with subsection A shall:
1. Provide a sworn statement or affirmation disclosing whether he has ever been convicted of or is the subject of pending charges for any offense within or outside the Commonwealth and whether he has been the subject of a founded complaint of child abuse or neglect within or outside the Commonwealth;
2. Submit to fingerprinting and provide personal descriptive information described in subdivision B 2 of §19.2-392.02; and
3. Authorize the child day center or family day home to obtain a copy of information from the central registry maintained pursuant to § 63.2-1515 on any investigation of child abuse or neglect undertaken on him.
The applicant's fingerprints and personal descriptive information obtained pursuant to subdivision 2 shall be forwarded through the Central Criminal Records Exchange to the Federal Bureau of Investigation for the purpose of obtaining national criminal history record information regarding such applicant. Upon receipt of an applicant's record or notification that no record exists, the Central Criminal Records Exchange shall forward the information to the Department, and the Department shall report to the child day center or family day home whether the applicant is eligible to have responsibility for the safety and well-being of children. In cases in which the record forwarded to the Department is lacking disposition data, the Department shall conduct research in whatever state and local recordkeeping systems are available in order to obtain complete data before reporting to the child day center or family day home.
C. The child day center or family day home shall inform every applicant for compensated employment or to serve as a volunteer required to undergo a background check pursuant to this section that he is entitled to obtain a copy of any background check report and to challenge the accuracy and completeness of any such report and obtain a prompt resolution before a final determination is made of the applicant's eligibility to have responsibility for the safety and well-being of children.
D. Any person making a materially false statement regarding the sworn statement or affirmation provided pursuant to subdivision B 1 is guilty of a Class 1 misdemeanor.
E. Further dissemination of the background check information is prohibited other than to the Commissioner's representative or a federal or state authority or court as may be required to comply with an express requirement of law for such further dissemination.
F. A person who complies in good faith with the provisions of this section shall not be liable for any civil damages for any act or omission in the performance of duties under this section unless the act or omission was the result of gross negligence or willful misconduct.
G. Notwithstanding the provisions of subsection A, a child day center may hire for compensated employment persons who have been convicted of not more than one misdemeanor offense under §18.2-57, or any substantially similar offense under the laws of another jurisdiction, if 10 years have elapsed following the conviction, unless the person committed such offense while employed in a child day center or the object of the offense was a minor.
H. Fees charged for the processing and administration of background checks pursuant to this section shall not exceed the actual cost to the state of such processing and administration.
I. Any person employed for compensation at a licensed child
day center or family day home or permitted to serve as a volunteer at a
licensed child day center or family day home in a position that is involved in
the day-to-day operations of the child day center or family day home or in
which he will be alone with, in control of, or supervising children who is (i)
convicted of an offense any barrier crime as defined in §
63.2-1719 within or outside of the Commonwealth 19.2-392.02 or (ii)
found to be the subject of a founded complaint of child abuse or neglect within
or outside of the Commonwealth shall notify the child day center or family day
home of such conviction or finding.
§63.2-1721. (Effective until July 1, 2017) Background check upon application for licensure or registration as child welfare agency; background check of foster or adoptive parents approved by child-placing agencies and family day homes approved by family day systems; penalty.
A. Upon application for licensure or registration as a child welfare agency, (i) all applicants; (ii) agents at the time of application who are or will be involved in the day-to-day operations of the child welfare agency or who are or will be alone with, in control of, or supervising one or more of the children; and (iii) any other adult living in the home of an applicant for licensure or registration as a family day home shall undergo a background check. Upon application for licensure as an assisted living facility, all applicants shall undergo a background check. In addition, foster or adoptive parents requesting approval by child-placing agencies and operators of family day homes requesting approval by family day systems, and any other adult residing in the family day home or existing employee or volunteer of the family day home, shall undergo background checks pursuant to subsection B prior to their approval.
B. Background checks pursuant to this section require:
1. A sworn statement or affirmation disclosing whether the person has a criminal conviction or is the subject of any pending criminal charges within or outside the Commonwealth and whether or not the person has been the subject of a founded complaint of child abuse or neglect within or outside the Commonwealth;
2. A criminal history record check through the Central Criminal Records Exchange pursuant to §19.2-389; and
3. In the case of child welfare agencies or adoptive or foster parents, a search of the central registry maintained pursuant to §63.2-1515 for any founded complaint of child abuse and neglect.
C. The character and reputation investigation pursuant to §
63.2-1702 shall include background checks pursuant to subsection B of persons
specified in subsection A. The applicant shall submit the background check
information required in subsection B to the Commissioner's representative prior
to issuance of a license, registration or approval. The applicant shall provide
an original criminal record clearance with respect to offenses specified
any barrier crime as defined in § 63.2-1719 19.2-392.02 or an
original criminal history record from the Central Criminal Records Exchange.
Any person making a materially false statement regarding the sworn statement or
affirmation provided pursuant to subdivision B 1 shall be is
guilty of a Class 1 misdemeanor. If any person specified in subsection A
other than an applicant for licensure as an assisted living facility
required to have a background check (i) has been convicted of any
offense barrier crime as defined in § 63.2-1719
19.2-392.02 or (ii) is the subject of a founded complaint of child abuse or
neglect within or outside the Commonwealth, and such person has not been
granted a waiver by the Commissioner pursuant to §63.2-1723 or is not subject
to an exception in subsections E, F, G, or H (i), (a) the
Commissioner shall not issue a license or registration to a child welfare
agency; (ii) the Commissioner shall not issue a license to an assisted
living facility; (iii) (b) a child-placing agency shall not approve
an adoptive or foster home; or (iv) (c) a family day system shall
not approve a family day home. If any applicant for licensure as an assisted
living facility required to have a background check has been convicted of any
offense set forth in clause (i) of the definition of barrier crimes in §
19.2-392.02, the Commissioner shall not issue a license to an assisted living
facility.
D. No person specified in subsection A shall be involved in the day-to-day operations of a child welfare agency; be alone with, in control of, or supervising one or more children receiving services from a child welfare agency; or be permitted to work in a position that involves direct contact with a person receiving services without first having completed background checks pursuant to subsection B, unless such person is directly supervised by another person for whom a background check has been completed in accordance with the requirements of this section.
E. Notwithstanding any provision to the contrary contained in this section, a child-placing agency may approve as an adoptive or foster parent an applicant who has been convicted of or has been the subject of a finding of not guilty by reason of insanity in accordance with Chapter 11.1 (§19.2-182.2 et seq.) of Title 19.2 of not more than one misdemeanor offense as set out in §18.2-57, or any substantially similar offense under the laws of another jurisdiction, not involving abuse, neglect, moral turpitude, or a minor, provided that 10 years have elapsed following the conviction.
F. Notwithstanding any provision to the contrary contained in this section, a child-placing agency may approve as a foster parent an applicant who has been convicted of statutory burglary for breaking and entering a dwelling home or other structure with intent to commit larceny, or any substantially similar offense under the laws of another jurisdiction, who has had his civil rights restored by the Governor or other appropriate authority, provided that 25 years have elapsed following the conviction.
G. Notwithstanding any provision to the contrary contained in
this section, a child-placing agency may approve as an adoptive or foster
parent an applicant convicted of felony possession of drugs, any
offense set forth in clause (iv) of the definition of barrier crime in §
19.2-392.02 who has had his civil rights restored by the Governor or
other appropriate authority, provided that 10 years have elapsed
following the conviction.
H. Notwithstanding any provision to the contrary contained in this
section, a child-placing agency may approve as an adoptive or foster parent an
applicant convicted of felony possession of drugs with intent to distribute
any offense set forth in clause (iii) of the definition of barrier crime in §
19.2-392.02 who has had his civil rights restored by the Governor or
other appropriate authority, provided that 20 years have elapsed
following the conviction.
I. If an applicant is denied licensure, registration or approval because of information from the central registry or convictions appearing on his criminal history record, the Commissioner shall provide a copy of the information obtained from the central registry or the Central Criminal Records Exchange or both to the applicant.
J. Further dissemination of the background check information is prohibited other than to the Commissioner's representative or a federal or state authority or court as may be required to comply with an express requirement of law for such further dissemination.
K. The provisions of this section referring to a sworn statement or affirmation and to prohibitions on the issuance of a license for any offense shall not apply to any children's residential facility licensed pursuant to §63.2-1701, which instead shall comply with the background investigation requirements contained in §63.2-1726.
§63.2-1721. (Effective July 1, 2017) Background check upon application for licensure as a child-placing agency, etc.; penalty.
A. Upon application for licensure as a child-placing agency, independent foster home, or family day system or registration as a family day home, (i) all applicants; (ii) agents at the time of application who are or will be involved in the day-to-day operations of the child-placing agency, independent foster home, family day system, or family day home or who are or will be alone with, in control of, or supervising one or more of the children; and (iii) any other adult living in the home of an applicant for registration as a family day home shall undergo a background check pursuant to subsection B. Upon application for licensure as an assisted living facility, all applicants shall undergo a background check pursuant to subsection B. In addition, foster or adoptive parents requesting approval by child-placing agencies and operators of family day homes requesting approval by family day systems, and any other adult residing in the family day home or existing employee or volunteer of the family day home, shall undergo background checks pursuant to subsection B prior to their approval.
B. Background checks pursuant to subsection A require:
1. A sworn statement or affirmation disclosing whether the person has a criminal conviction or is the subject of any pending criminal charges within or outside the Commonwealth and whether or not the person has been the subject of a founded complaint of child abuse or neglect within or outside the Commonwealth;
2. A criminal history records check through the Central Criminal Records Exchange pursuant to §19.2-389; and
3. In the case of child-placing agencies, independent foster homes, family day systems, and family day homes, or adoptive or foster parents, a search of the central registry maintained pursuant to §63.2-1515 for any founded complaint of child abuse and neglect.
C. The person required to have a background check pursuant to
subsection A shall submit the background check information required in
subsection B to the Commissioner's representative prior to issuance of a
license, registration or approval. The applicant shall provide an original
criminal record clearance with respect to offenses specified any
barrier crime as defined in § 63.2-1719 19.2-392.02 or an
original criminal history record from the Central Criminal Records Exchange.
Any person making a materially false statement regarding the sworn statement or
affirmation provided pursuant to subdivision B 1 is guilty of a Class 1
misdemeanor. If any person specified in subsection A other than an applicant
for licensure as an assisted living facility required to have a background
check (i) has been convicted of any offense barrier
crime as defined in § 63.2-1719 19.2-392.02 or (ii) is the
subject of a founded complaint of child abuse or neglect within or outside the
Commonwealth, and such person has not been granted a waiver by the
Commissioner pursuant to §63.2-1723 or is not subject to an exception in
subsection E, F, G, or H, (i) (a) the Commissioner shall not
issue a license to a child-placing agency, independent foster home, or family
day system or a registration to a family day home; (ii) the Commissioner
shall not issue a license to an assisted living facility; (iii) (b)
a child-placing agency shall not approve an adoptive or foster home; or (iv)
(c) a family day system shall not approve a family day home. If any
applicant for licensure as an assisted living facility required to have a
background check has been convicted of any offense set forth in clause (i) of
the definition of barrier crimes in §19.2-392.02, the Commissioner shall not
issue a license to an assisted living facility.
D. No person specified in subsection A shall be involved in the day-to-day operations of a licensed child-placing agency, independent foster home, or family day system or a registered family day home; be alone with, in control of, or supervising one or more children receiving services from a licensed child-placing agency, independent foster home, or family day system or a registered family day home; or be permitted to work in a position that involves direct contact with a person receiving services without first having completed background checks pursuant to subsection B unless such person is directly supervised by another person for whom a background check has been completed in accordance with the requirements of this section.
E. Notwithstanding any provision to the contrary contained in this section, a child-placing agency may approve as an adoptive or foster parent an applicant who has been convicted of not more than one misdemeanor offense as set out in §18.2-57, or any substantially similar offense under the laws of another jurisdiction, not involving abuse, neglect, moral turpitude, or a minor, provided that 10 years have elapsed following the conviction.
F. Notwithstanding any provision to the contrary contained in this section, a child-placing agency may approve as a foster parent an applicant who has been convicted of statutory burglary for breaking and entering a dwelling home or other structure with intent to commit larceny, or any substantially similar offense under the laws of another jurisdiction, who has had his civil rights restored by the Governor or other appropriate authority, provided that 25 years have elapsed following the conviction.
G. Notwithstanding any provision to the contrary contained in this
section, a child-placing agency may approve as an adoptive or foster parent an
applicant convicted of felony possession of drugs, any offense set
forth in clause (iv) of the definition of barrier crime in §19.2-392.02
who has had his civil rights restored by the Governor or other appropriate
authority, provided that 10 years have elapsed following the conviction.
H. Notwithstanding any provision to the contrary contained in
this section, a child-placing agency may approve as an adoptive or foster parent
an applicant convicted of felony possession of drugs with intent to
distribute any offense set forth in clause (iii) of the definition of
barrier crime in §19.2-392.02 who has had his civil rights restored by the
Governor or other appropriate authority, provided that 20 years
have elapsed following the conviction.
I. If an applicant is denied licensure, registration or approval because of information from the central registry or convictions appearing on his criminal history record, the Commissioner shall provide a copy of the information obtained from the central registry or the Central Criminal Records Exchange or both to the applicant.
J. Further dissemination of the background check information is prohibited other than to the Commissioner's representative or a federal or state authority or court as may be required to comply with an express requirement of law for such further dissemination.
§63.2-1721.1. (Effective July 1, 2017) Background check upon application for licensure as child day center or family day home; penalty.
A. Every (i) applicant for licensure as a child day center or family day home; (ii) agent of an applicant for licensure as a child day center or family day home at the time of application who is or will be involved in the day-to-day operations of the child day center or family day home or who is or will be alone with, in control of, or supervising one or more of the children; and (iii) adult living in the family day home shall undergo a background check in accordance with subsection B prior to issuance of a license as a child day center or family day home.
B. Every person required to undergo a background check pursuant to subsection A shall:
1. Provide a sworn statement or affirmation disclosing whether he has ever been convicted of or is the subject of any pending criminal charges for any offense within or outside the Commonwealth and whether or not he has been the subject of a founded complaint of child abuse or neglect within or outside the Commonwealth;
2. Submit to fingerprinting and provide personal descriptive information described in subdivision B 2 of §19.2-392.02; and
3. Authorize the Department to obtain a copy of information from the central registry maintained pursuant to §63.2-1515 on any investigation of child abuse or neglect undertaken on him.
Fingerprints and personal descriptive information obtained pursuant to subdivision 2 shall be forwarded through the Central Criminal Records Exchange to the Federal Bureau of Investigation for the purpose of obtaining national criminal history record information regarding the individual. Upon receipt of an applicant's record or notification that no record exists, the Central Criminal Records Exchange shall forward the information to the Department. In cases in which the record forwarded to the Department is lacking disposition data, the Department shall conduct research in whatever state and local recordkeeping systems are available in order to obtain complete data.
C. If any person specified in subsection A required to have a
background check (i) has an offense been convicted of any
barrier crime as defined in § 63.2-1719 19.2-392.02 or (ii) is
the subject of a founded complaint of child abuse or neglect within or outside
the Commonwealth, and such person has not been granted a waiver by the
Commissioner pursuant to §63.2-1723, no license as a child day center or
family day home shall be granted.
D. Information from a search of the central registry maintained pursuant to §63.2-1515, authorized in accordance with subdivision B 3, shall be obtained prior to issuance of a license as a child day center or family day home.
E. No person specified in subsection A shall be involved in the day-to-day operations of the child day center or family day home, or shall be alone with, in control of, or supervising one or more children without first having completed any required background check pursuant to subsection B.
F. Any person making a materially false statement regarding the sworn statement or affirmation provided pursuant to subdivision B 1 is guilty of a Class 1 misdemeanor.
G. If an applicant is denied licensure because of information from the central registry or convictions appearing on his criminal history record, the Commissioner shall provide a copy of the information obtained from the central registry or the Central Criminal Records Exchange or both to the applicant.
H. Further dissemination of the background check information is prohibited other than to the Commissioner's representative or a federal or state authority or court as may be required to comply with an express requirement of law for such further dissemination.
I. Fees charged for the processing and administration of background checks pursuant to this section shall not exceed the actual cost to the state of such processing and administration.
§63.2-1722. Revocation or denial of renewal based on background checks; failure to obtain background check.
A. The Commissioner may revoke or deny renewal of a license or
registration of a child welfare agency, assisted living facility, or adult day
care center; a child-placing agency may revoke the approval of a foster home;
and a family day system may revoke the approval of a family day home if the
assisted living facility, adult day care center, child welfare agency, foster
home, or approved family day home has knowledge that a person specified in §
63.2-1720, 63.2-1720.1, 63.2-1721, or 63.2-1721.1 required to have a background
check (i) has an offense been convicted of any barrier crime
as defined in § 63.2-1719 19.2-392.02 or (ii) in the case of a child
welfare agency, foster home, or family day home, is the subject of a founded
complaint of child abuse or neglect within or outside the Commonwealth, and
such person has not been granted a waiver by the Commissioner pursuant to §
63.2-1723 or is not subject to the exceptions in subsection B of §63.2-1720,
subsection G of §63.2-1720.1, or subsection E, F, or G of §63.2-1721.1, and
the facility, center, or agency refuses to separate such person from employment
or service.
B. Failure to obtain background checks pursuant to §§ 63.2-1720, 63.2-1720.1, 63.2-1721, and 63.2-1721.1 shall be grounds for denial or revocation of a license, registration, or approval. No violation shall occur if the assisted living facility, adult day care center, child-placing agency, independent foster home, family day system, family day home, or child day center has applied for the background check timely and it has not been obtained due to administrative delay. The provisions of this section shall be enforced by the Department.
§63.2-1723. Child welfare agencies; criminal conviction and waiver.
A. Any person who seeks to operate, volunteer or work at a
child welfare agency and who is disqualified because of a criminal conviction
or a criminal conviction in the background check of any other adult living in a
family day home regulated by the Department, pursuant to §§63.2-1720,
63.2-1720.1, 63.2-1721, 63.2-1721.1, and 63.2-1724, may apply in writing for a
waiver from the Commissioner. The Commissioner may grant a waiver if the
Commissioner determines that (i) the person is of good moral character and
reputation and (ii) the waiver would not adversely affect the safety and
well-being of children in the person's care. The Commissioner shall not grant a
waiver to any person who has been convicted of a barrier crime as defined in §
63.2-1719 19.2-392.02. However, the Commissioner may grant a waiver
to a family day home licensed or registered by the Department if any other
adult living in the home of the applicant or provider has been convicted of not
more than one misdemeanor offense under §18.2-57 or 18.2-57.2, provided that
(a) five years have elapsed following the conviction and (b) the Department has
conducted a home study that includes, but is not limited to, (1) an assessment
of the safety of children placed in the home and (2) a determination that the
offender is now a person of good moral character and reputation. The waiver
shall not be granted if the adult living in the home is an assistant or
substitute provider or if such adult has been convicted of a misdemeanor
offense under both §§18.2-57 and 18.2-57.2. Any waiver granted under this
section shall be available for inspection by the public. The child welfare
agency shall notify in writing every parent and guardian of the children in its
care of any waiver granted for its operators, employees or volunteers.
B. The Board shall adopt regulations to implement the provisions of this section.
§63.2-1724. Records check by unlicensed child day center; penalty.
Any child day center that is exempt from licensure pursuant to
§63.2-1716 shall require a prospective employee or volunteer or any other
person who is expected to be alone with one or more children enrolled in the
child day center to obtain within 30 days of employment or commencement of
volunteer service, a search of the central registry maintained pursuant to §
63.2-1515 on any founded complaint of child abuse or neglect and a criminal
records check as provided in subdivision A 11 of §19.2-389. However, no employee
shall be permitted to work in a position that involves direct contact with a
child until an original criminal record clearance or original criminal history
record has been received, unless such person works under the direct supervision
of another employee for whom a background check has been completed in
accordance with the requirements of this section. A child day center that is
exempt from licensure pursuant to §63.2-1716 shall refuse employment or
service to any person who (i) has been convicted of any
offense barrier crime as defined in § 63.2-1719
19.2-392.02 or (ii) is the subject of a founded complaint of child abuse or
neglect within or outside the Commonwealth. Such center shall also require
a prospective employee or volunteer or any other person who is expected to be
alone with one or more children in the child day center to provide a sworn
statement or affirmation disclosing whether or not the applicant has ever been
(i) (a) the subject of a founded complaint of child abuse or neglect,
or (ii) (b) convicted of a crime or is the subject of pending
criminal charges for any offense within the Commonwealth or any equivalent
offense outside the Commonwealth. The foregoing provisions shall not apply to a
parent or guardian who may be left alone with his or her own child. For
purposes of this section, convictions shall include prior adult convictions and
juvenile convictions or adjudications of delinquency based on a crime that
would have been a felony if committed by an adult within or outside the Commonwealth.
Any person making a materially false statement regarding any such offense
shall be is guilty of a Class 1 misdemeanor. If an applicant is
denied employment or service because of information from the central registry
or convictions appearing on his criminal history record, the child day center
shall provide a copy of the information obtained from the central registry or
Central Criminal Records Exchange or both to the applicant. Further
dissemination of the information provided to the facility is prohibited.
The provisions of this section referring to volunteers shall apply only to volunteers who will be alone with any child in the performance of their duties and shall not apply to a parent-volunteer of a child attending the child day center whether or not such parent-volunteer will be alone with any child in the performance of his duties. A parent-volunteer is someone supervising, without pay, a group of children which includes the parent-volunteer's own child, in a program which operates no more than four hours per day, where the parent-volunteer works under the direct supervision of a person who has received a clearance pursuant to this section.
§63.2-1725. Child day centers or family day homes receiving federal, state, or local child care funds; eligibility requirements.
A. Whenever any child day center or family day home that has
not met the requirements of §§63.2-1720, 63.2-1721, and 63.2-1724 applies to
enter into a contract with the Department or a local department to provide
child care services to clients of the Department or local department, the
Department or local department shall require a criminal records check pursuant
to subdivision A 43 of §19.2-389, as well as a search of the central registry
maintained pursuant to §63.2-1515, on any child abuse or neglect
investigation, of the applicant; any employee; prospective employee;
volunteers; agents involved in the day-to-day operation; all agents who are
alone with, in control of, or supervising one or more of the children; and any
other adult living in a family day home. The applicant shall provide the
Department or local department with copies of these records checks. The child
day center or family day home shall not be permitted to enter into a contract
with the Department or a local department for child care services when an
applicant; any employee; a prospective employee; a volunteer, an agent involved
in the day-to-day operation; an agent alone with, in control of, or supervising
one or more children; or any other adult living in a family day home (i)
has been convicted of any offense barrier crime as defined
in § 63.2-1719 19.2-392.02 or (ii) is the subject of a founded
complaint of child abuse or neglect within or outside the Commonwealth. The
child day center or family day home shall also require the above individuals to
provide a sworn statement or affirmation disclosing whether or not the person
has ever been (i) (a) the subject of a founded case of child
abuse or neglect or (ii) (b) convicted of a crime or is the
subject of any pending criminal charges within the Commonwealth or any
equivalent offense outside the Commonwealth. Any person making a materially
false statement regarding any such offense shall be is guilty of
a Class 1 misdemeanor. If a person is denied employment or work because of
information from the central registry or convictions appearing on his criminal
history record, the child day center or family day program shall provide a copy
of such information obtained from the central registry or Central Criminal Records
Exchange or both to the person. Further dissemination of the information
provided to the facility, beyond dissemination to the Department, agents of the
Department, or the local department, is prohibited.
B. Every child day center or family day home that enters into a contract with the Department or a local department to provide child care services to clients of the Department or local departments that is funded, in whole or in part, by the Child Care and Development Block Grant, shall comply with all requirements established by federal law and regulations.
§63.2-1726. Background check required; children's residential facilities.
A. As a condition of employment, volunteering, or providing services on a regular basis, every children's residential facility that is regulated or operated by the Departments of Social Services, Education, Military Affairs, or Behavioral Health and Developmental Services shall require any individual who (i) accepts a position of employment at such a facility who was not employed by that facility prior to July 1, 2007, (ii) volunteers for such a facility on a regular basis and will be alone with a juvenile in the performance of his duties who was not a volunteer at such facility prior to July 1, 2007, or (iii) provides contractual services directly to a juvenile for such facility on a regular basis and will be alone with a juvenile in the performance of his duties who did not provide such services prior to July 1, 2007, to submit to fingerprinting and to provide personal descriptive information, to be forwarded along with the applicant's fingerprints through the Central Criminal Records Exchange to the Federal Bureau of Investigation for the purpose of obtaining criminal history record information regarding such applicant. The children's residential facility shall inform the applicant that he is entitled to obtain a copy of any background check report and to challenge the accuracy and completeness of any such report and obtain a prompt resolution before a final determination is made of the applicant's eligibility to have responsibility for the safety and well-being of children. The applicant shall provide the children's residential facility with a written statement or affirmation disclosing whether he has ever been convicted of or is the subject of pending charges for any offense within or outside the Commonwealth. The results of the criminal history background check must be received prior to permitting an applicant to work with children.
The Central Criminal Records Exchange, upon receipt of an
individual's record or notification that no record exists, shall forward it to
the state agency which operates or regulates the children's residential
facility with which the applicant is affiliated. The state agency shall, upon
receipt of an applicant's record lacking disposition data, conduct research in
whatever state and local recordkeeping systems are available in order to obtain
complete data. The state agency shall report to the children's facility whether
the applicant is eligible to have responsibility for the safety and well-being
of children. Except as otherwise provided in subsection B, no children's
residential facility regulated or operated by the Departments of Education,
Behavioral Health and Developmental Services, Military Affairs, or Social
Services shall hire for compensated employment or allow to volunteer or provide
contractual services persons who have been (a) convicted of or are the
subject of pending charges for the following crimes: a felony violation of a
protective order as set out in §16.1-253.2; murder or manslaughter as set out
in Article 1 (§18.2-30 et seq.) of Chapter 4 of Title 18.2; malicious wounding
by mob as set out in §18.2-41; abduction as set out in subsection A or B of §
18.2-47; abduction for immoral purposes as set out in §18.2-48; assault and
bodily woundings as set out in Article 4 (§18.2-51 et seq.) of Chapter 4 of
Title 18.2; robbery as set out in §18.2-58; carjacking as set out in §
18.2-58.1; extortion by threat as set out in §18.2-59; threat as set out in §
18.2-60; any felony stalking violation as set out in §18.2-60.3; a felony
violation of a protective order as set out in §18.2-60.4; sexual assault as
set out in Article 7 (§18.2-61 et seq.) of Chapter 4 of Title 18.2; arson as
set out in Article 1 (§18.2-77 et seq.) of Chapter 5 of Title 18.2; burglary
as set out in Article 2 (§18.2-89 et seq.) of Chapter 5 of Title 18.2; any
felony violation relating to distribution of drugs as set out in Article 1 (§
18.2-247 et seq.) of Chapter 7 of Title 18.2; drive-by shooting as set out in §
18.2-286.1; use of a machine gun in a crime of violence as set out in §
18.2-289; aggressive use of a machine gun as set out in §18.2-290; use of a
sawed off shotgun in a crime of violence as set out in subsection A of §
18.2-300; pandering as set out in §18.2-355; crimes against nature involving
children as set out in §18.2-361; taking indecent liberties with children as
set out in §18.2-370 or 18.2-370.1; abuse or neglect of children as set out in
§18.2-371.1, including failure to secure medical attention for an injured
child as set out in §18.2-314; obscenity offenses as set out in §18.2-374.1;
possession of child pornography as set out in §18.2-374.1:1; electronic
facilitation of pornography as set out in §18.2-374.3; incest as set out in §
18.2-366; abuse or neglect of incapacitated adults as set out in §18.2-369;
employing or permitting a minor to assist in an act constituting an offense
under Article 5 (§18.2-372 et seq.) of Chapter 8 of Title 18.2 as set out in §
18.2-379; delivery of drugs to prisoners as set out in §18.2-474.1; escape
from jail as set out in §18.2-477; felonies by prisoners as set out in §
53.1-203; or an equivalent offense in another state; (a) any offense set
forth in clause (i), (ii), or (v) of the definition of barrier crime in §
19.2-392.02; (b) convicted of any felony violation relating to
possession of drugs as set out in Article 1 (§18.2-247 et seq.) of Chapter 7
of Title 18.2, or an equivalent offense in another state, in the five years
prior to the application date for employment, to be a volunteer, or to provide
contractual services offense set forth in clause (iii) of the definition
of barrier crime; or (c) convicted of any felony violation
relating to possession of drugs as set out in Article 1 (§18.2-247 et seq.) of
Chapter 7 of Title 18.2 offense set forth in clause (iv) of the
definition of barrier crime in the five years prior to the application date for
employment, to be a volunteer, or to provide contractual services and
continue on probation or parole or have failed to pay required court costs;
or (d) convicted of any offense set forth in §9.1-902 or have been the subject
of a finding of not guilty by reason of insanity in accordance with Chapter
11.1 (§19.2-182.2 et seq.) of Title 19.2 of an offense set forth in §9.1-902
that results in the person's requirement to register with the Sex Offender and
Crimes Against Minors Registry pursuant to §9.1-901, or any similar registry
in any other state for such offense set forth in clause (iv) of the
definition of barrier crime in §19.2-392.02. The provisions of this
section also shall apply to residential programs established pursuant to §
16.1-309.3 for juvenile offenders cited in a complaint for intake or in a
petition before the court that alleges the juvenile is delinquent or in need of
services or supervision, and to local secure detention facilities provided,
however, that the provisions of this section related to local secure detention
facilities shall only apply to an individual who, on or after July 1, 2013,
accepts a position of employment at such local secure detention facility,
volunteers at such local secure detention facility on a regular basis and will be
alone with a juvenile in the performance of his duties, or provides contractual
services directly to a juvenile at a local secure detention facility on a
regular basis and will be alone with a juvenile in the performance of his
duties. The Central Criminal Records Exchange and the state or local agency
that regulates or operates the local secure detention facility shall process
the criminal history record information regarding such applicant in accordance
with this subsection and subsection B.
B. Notwithstanding the provisions of subsection A, a children's residential facility may hire for compensated employment or for volunteer or contractual service purposes persons who have been convicted of not more than one misdemeanor offense under §18.2-57 or 18.2-57.2, or any substantially similar laws of another jurisdiction, if 10 years have elapsed following the conviction, unless the person committed such offense in the scope of his employment, volunteer, or contractual services.
If the applicant is denied employment or the opportunity to volunteer or provide services at a children's residential facility because of information appearing on his criminal history record, and the applicant disputes the information upon which the denial was based, upon written request of the applicant the state agency shall furnish the applicant the procedures for obtaining his criminal history record from the Federal Bureau of Investigation. If the applicant has been permitted to assume duties that do not involve contact with children pending receipt of the report, the children's residential facility is not precluded from suspending the applicant from his position pending a final determination of the applicant's eligibility to have responsibility for the safety and well-being of children. The information provided to the children's residential facility shall not be disseminated except as provided in this section.
C. Those individuals listed in clauses (i), (ii) and (iii) of subsection A also shall authorize the children's residential facility to obtain a copy of information from the central registry maintained pursuant to § 63.2-1515 on any investigation of child abuse or neglect undertaken on him. The applicant shall provide the children's residential facility with a written statement or affirmation disclosing whether he has ever been the subject of a founded case of child abuse or neglect within or outside the Commonwealth. The children's residential facility shall receive the results of the central registry search prior to permitting an applicant to work alone with children. Children's residential facilities regulated or operated by the Departments of Education; Behavioral Health and Developmental Services; Military Affairs; and Social Services shall not hire for compensated employment or allow to volunteer or provide contractual services, persons who have a founded case of child abuse or neglect. Every residential facility for juveniles which is regulated or operated by the Department of Juvenile Justice shall be authorized to obtain a copy of the information from the central registry.
D. The Boards of Social Services; Education; Juvenile Justice; and Behavioral Health and Developmental Services, and the Department of Military Affairs, may adopt regulations to comply with the provisions of this section. Copies of any information received by a children's residential facility pursuant to this section shall be available to the agency that regulates or operates such facility but shall not be disseminated further. The cost of obtaining the criminal history record and the central registry information shall be borne by the employee or volunteer unless the children's residential facility, at its option, decides to pay the cost.