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2019 SESSION
19103722DBe it enacted by the General Assembly of Virginia:
1. That §§ 37.2-408.1 and 63.2-1726 of the Code of Virginia are amended and reenacted as follows:
§ 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) is currently employed
by such a facility, (iii)
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) (iv) provides contractual
services directly to a juvenile for such a
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 in the children's
residential facility.
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 convicted of or are the subject of pending charges for (a) any offense set forth in clause (i), (ii), (iii), or (v) of the definition of barrier crime in § 19.2-392.02 or (b) any offense set forth in clause (iv) of the definition of barrier crime in § 19.2-392.02 (1) in the five years prior to the application date for employment, to be a volunteer, or to provide contractual services or (2) such person 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 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) through (iv) 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.
§ 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) is employed by such a facility,
(iii) 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) (iv) provides contractual
services directly to a juvenile for such a
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 in the children's residential facility.
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 convicted of or are the subject of pending charges for (a) any offense set forth in clause (i), (ii), (iii), or (v) of the definition of barrier crime in § 19.2-392.02 or (b) any offense set forth in clause (iv) of the definition of barrier crime in § 19.2-392.02 (1) in the five years prior to the application date for employment, to be a volunteer, or to provide contractual services or (2) such person 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 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 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 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) through (iv)
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.
2. That an emergency exists and this act is in force from its passage.