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Developed and maintained by the Division of Legislative Automated Systems.
2006 SESSION
060497732Be it enacted by the General Assembly of Virginia:
1. That §§ 19.2-392.02, 32.1-126.01, 32.1-162.9:1, 63.2-1720, 63.2-1721, 63.2-1724, and 63.2-1725 of the Code of Virginia are amended and reenacted as follows:
§ 19.2-392.02. National criminal background checks by businesses and organizations regarding employees or volunteers providing care to children, the elderly and disabled; civil penalty.
A. For purposes of this section:
"Barrier crime" means any offense set forth in § 63.2-1719 or 63.2-1726.
"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, 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 or (ii) owns, operates, or seeks to own or operate a qualified entity.
"Qualified entity" means a business or organization
that provides care to children, 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. Notwithstanding §§ 63.2-1719 to 63.2-1721 and 63.2-1724, 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 at any local or state law-enforcement agency and provided the fingerprints to the qualified entity; 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, 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 record-keeping 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, 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.
§ 32.1-126.01. Employment for compensation of persons convicted of certain offenses 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 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 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, threats of death or bodily injury as set out in § 18.2-60, felony stalking as set out in § 18.2-60.3, 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. However, a licensed nursing home may hire an applicant who has been convicted of one misdemeanor specified in this section not involving abuse or neglect or moral turpitude, provided five years have elapsed following the conviction.
Any person desiring to work at a licensed nursing home, beginning on or after July 1, 2007, 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 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.
B. 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. The
applicant shall 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 for the
purpose of obtaining a national criminal history record information check
regarding such applicant. The Central Criminal Records Exchange, upon receipt
of an applicant's record or notification that no record exists, shall make a
report to the nursing home 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 any offense set forth in subsection A or an equivalent
offense in another state. The Central Criminal Records Exchange shall not
disclose information to a nursing home 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 Central Criminal Records Exchange or Federal
Bureau of Investigation. The information provided to the nursing home shall not
be disseminated except as provided in this section.
In addition to the fees assessed by the Federal Bureau of
Investigation, the Department of State Police may assess a fee for responding
to requests required by 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.
BC. 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.
CD. 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 certain offenses prohibited; criminal records check required; 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, b, or c 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 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 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, threats of death or bodily injury as set out in § 18.2-60, felony stalking as set out in § 18.2-60.3, 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.
However, a home care organization or hospice may hire an applicant convicted of one misdemeanor specified in this section not involving abuse or neglect or moral turpitude, provided five years have elapsed since the conviction.
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, b, or c of § 32.1-162.8 or any licensed hospice as defined in § 32.1-162.1, beginning on or after July 1, 2007, 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 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.
B. 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. The applicant shall 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 for the purpose of obtaining a national
criminal history record information check regarding such applicant. The Central
Criminal Records Exchange, upon receipt of an applicant's record or
notification that no record exists, shall make a report to the home care
organization or hospice 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 any offense set forth in subsection A or an equivalent offense in
another state. The Central Criminal Records Exchange shall not disclose
information to a home care organization or hospice 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 Central Criminal
Records Exchange or Federal Bureau of Investigation. The information provided
to the home care organization or hospice shall not be disseminated except as
provided in this section.
In addition to the fees assessed by the Federal Bureau of
Investigation, the Department of State Police may assess a fee for responding
to requests required by 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.
BC. 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.
CD. 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.
§ 63.2-1720. Employment for compensation of persons or use of volunteers convicted of certain offenses prohibited; background check required; penalty.
A. An assisted living facility, 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 persons who have an offense as defined in § 63.2-1719 or 63.2-1726. Such employees, whose employment commences on or after July 1, 2007, 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 convicted of one misdemeanor barrier crime not involving abuse or neglect or moral turpitude, provided 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 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 The applicant 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 a
national criminal history record information check regarding such applicant.
The Central Criminal Records Exchange, upon receipt of an applicant's record or
notification that no record exists, shall make a report to an assisted living
facility, adult day care center, or child welfare agency 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 any offense set forth
in § 63.2-1719 or 63.2-1726 or an equivalent offense in another state. The
Central Criminal Records Exchange shall not disclose information to an assisted
living facility, adult day care center, or child welfare agency 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 Central
Criminal Records Exchange or Federal Bureau of Investigation. The information
provided to the assisted living facility, adult day care center, or child
welfare agency shall not be disseminated except as provided in this section.
In addition to the fees assessed by the Federal Bureau of Investigation, the Department of State Police may assess a fee for responding to requests required by this section; 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 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 in § 63.2-1719 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 and shall require the compensated employee to submit to a national
criminal record background check as provided in subdivision D 2. 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 the
Central Criminal Records Exchange or both to the applicant.
G. No volunteer who has an offense as defined in § 63.2-1719 or
63.2-1726 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) the information from the central
registry and shall require the volunteer to submit to a national criminal
record background check as provided in subdivision D 2.and (ii) an
original criminal record clearance with respect to offenses specified in §
63.2-1719 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 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.
§ 63.2-1721. 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 The applicant 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 a national criminal history record information check regarding such
applicant. The Central Criminal Records Exchange, upon receipt of an
applicant's record or notification that no record exists, shall make a report
to the child welfare agency 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 any offense set forth in § 63.2-1719 or 63.2-1726 or an
equivalent offense in another state. The Central Criminal Records Exchange
shall not disclose information to a child welfare agency 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 Central Criminal
Records Exchange or the Federal Bureau of Investigation. The information
provided to the child welfare agency shall not be disseminated except as provided
in this section.
In addition to the fees assessed by the Federal Bureau of Investigation, the Department of State Police may assess a fee for responding to requests required by this section; 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 in §
63.2-1719 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 guilty of a Class 1 misdemeanor. If any person specified in subsection A
required to have a background check has any offense as defined in § 63.2-1719
or 63.2-1726, 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 or F, (i) 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) a child-placing agency shall not
approve an adoptive or foster home; or (iv) a family day system shall not
approve a family day home.
D. No person specified in subsection A shall be involved in the day-to-day operations of the child welfare agency or shall be alone with, in control of, or supervising one or more of the children without first having completed background checks pursuant to subsection B.
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 convicted of not more than one misdemeanor as set out in § 18.2-57 not involving abuse, neglect, moral turpitude, or a minor, provided 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 convicted of statutory burglary for breaking and entering a dwelling home or other structure with intent to commit larceny, who has had his civil rights restored by the Governor, provided 25 years have elapsed following the conviction.
G. 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.
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. 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.
§ 63.2-1724. 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 national criminal
records check as provided in subdivision B 2 of § 63.2-1721 A 11 of §
19.2-389 and shall refuse employment or service to any person who has any
offense defined in § 63.2-1719 or 63.2-1726. 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) the subject of a founded complaint of child abuse or neglect, or (ii)
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 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 that includes the parent-volunteer's own child, in a program that 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. Records checks of child day centers or family day homes receiving federal, state or local child care funds; penalty.
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 a local department to provide child care services to
clients of the local department, the local department shall require a national
criminal records check pursuant to subdivision B 2 of § 63.2-1721
A 11 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 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 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 has any offense as defined in § 63.2-1719 or 63.2-1726. 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) the subject of a founded case of child abuse or neglect or
(ii) 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
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 local department, is prohibited.
2. That the provisions of this act that amend the Code of Virginia by amending and reenacting in Chapter 5 of Title 32.1, sections numbered 32.1-126.01 and 32.1-162.9:1, and in Chapter 17 of Title 63.2, sections numbered 63.2-1720, 63.2-1721, 63.2-1724, and 63.2-1725 shall become effective on July 1, 2007.
3. That the Secretary of Health and Human Resources, in collaboration with the Secretary of Public Safety, and with the advice and input from the Office of the Attorney General, shall seek consultation and information from all relevant agencies of government concerning the most efficient manner of complying with a requirement for a national criminal background check for new employees and volunteers of entities licensed to provide services to children and adult populations and to ensure the requirement extends, but is not necessarily limited, to: child welfare agencies, family day homes, assisted living facilities, adult day care centers, nursing facilities, home health organizations, and hospice facilities. This investigation shall also assess the number of entities, new employees, and volunteers affected and the most cost-effective way to implement these requirements.
In carrying out this investigation, the Secretary of Health and Human Resources shall convene a task force consisting of affected entities and interested parties including, but not limited to, the Department for the Aging, the Department of Health, the Department of Social Services, the Department of Rehabilitative Services, the Department of Mental Health, Mental Retardation and Substance Abuse Services, the Department of State Police, the Department of Medical Assistance Services, the Office of the Attorney General, as well as advocates for the aging adult populations, and the provider community including, but not limited to, child welfare agencies, family day homes, assisted living facilities, adult day care centers, nursing facilities, home health agencies, and hospice facilities. The Secretary shall submit the findings and recommendations of the task force to the Governor, and the Chairman of the Senate Committee on Rehabilitation and Social Services and the Chairman of the House Committee on Health, Welfare and Institutions by November 10, 2006.
4. That the provisions of this act shall not become effective unless an appropriation of funds effectuating the purposes of this act is included in the general appropriation act for the period of July 1, 2006, through July 30, 2008, passed during the 2007 Session of the General Assembly and signed into law by the Governor.