37.2-408.1 - Background check required; children's residential facilities.
§ 37.2-408.1. Background check required; children's residential facilities.
A. Notwithstanding the provisions of § 37.2-416, as a condition ofemployment, volunteering or providing services on a regular basis, everychildren's residential facility that is regulated or operated by theDepartment shall require any individual who (i) accepts a position ofemployment at such a facility who was not employed by that facility prior toJuly 1, 2008, (ii) volunteers for such a facility on a regular basis and willbe alone with a juvenile in the performance of his duties who was not avolunteer at such facility prior to July 1, 2008, or (iii) providescontractual services directly to a juvenile for such facility on a regularbasis and will be alone with a juvenile in the performance of his duties whodid not provide such services prior to July 1, 2008, to submit tofingerprinting and to provide personal descriptive information, to beforwarded along with the applicant's fingerprints through the CentralCriminal Records Exchange to the Federal Bureau of Investigation for thepurpose of obtaining criminal history record information regarding suchapplicant. The children's residential facility shall inform the applicantthat he is entitled to obtain a copy of any background check report and tochallenge the accuracy and completeness of any such report and obtain aprompt resolution before a final determination is made of the applicant'seligibility to have responsibility for the safety and well-being of children.The applicant shall provide the children's residential facility with awritten statement or affirmation disclosing whether he has ever beenconvicted of or is the subject of pending charges for any offense within oroutside the Commonwealth. The results of the criminal history backgroundcheck must be received prior to permitting an applicant to work with children.
The Central Criminal Records Exchange, upon receipt of an individual's recordor notification that no record exists, shall forward it to the state agencythat operates or regulates the children's residential facility with which theapplicant is affiliated. The state agency shall, upon receipt of anapplicant's record lacking disposition data, conduct research in whateverstate and local recordkeeping systems are available in order to obtaincomplete data. The state agency shall report to the children's facilitywhether the applicant is eligible to have responsibility for the safety andwell-being of children. Except as otherwise provided in subsection B, nochildren's residential facility regulated or operated by the Department shallhire for compensated employment or allow to volunteer or provide contractualservices persons who have been (a) convicted of or are the subject of pendingcharges for the following crimes: murder or manslaughter as set out inArticle 1 (§ 18.2-30 et seq.) of Chapter 4 of Title 18.2; malicious woundingby 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; assault andbodily woundings as set out in Article 4 (§ 18.2-51 et seq.) of Chapter 4 ofTitle 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; sexualassault as set out in Article 7 (§ 18.2-61 et seq.) of Chapter 4 of Title18.2; arson as set out in Article 1 (§ 18.2-77 et seq.) of Chapter 5 of Title18.2; burglary as set out in Article 2 (§ 18.2-89 et seq.) of Chapter 5 ofTitle 18.2; any felony violation relating to distribution of drugs as set outin Article 1 (§ 18.2-247 et seq.) of Chapter 7 of Title 18.2; drive-byshooting as set out in § 18.2-286.1; use of a machine gun in a crime ofviolence as set out in § 18.2-289; aggressive use of a machine gun as set outin § 18.2-290; use of a sawed-off shotgun in a crime of violence as set outin subsection A of § 18.2-300; pandering as set out in § 18.2-355; crimesagainst nature involving children as set out § 18.2-361; taking indecentliberties with children as set out in § 18.2-370 or 18.2-370.1; abuse orneglect of children as set out in § 18.2-371.1, including failure to securemedical attention for an injured child as set out in § 18.2-314; obscenityoffenses as set out in § 18.2-374.1; possession of child pornography as setout 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 ofincapacitated adults as set out in § 18.2-369; employing or permitting aminor to assist in an act constituting an offense under Article 5 (§ 18.2-372et seq.) of Chapter 8 of Title 18.2, as set out in § 18.2-379; delivery ofdrugs 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 equivalentoffense in another state; or (b) convicted of any felony violation relatingto possession of drugs set out in Article 1 (§ 18.2-247 et seq.) of Chapter 7of Title 18.2 in the five years prior to the application date for employment,to be a volunteer, or to provide contractual services; or (c) convicted ofany 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 continue on probation orparole or have failed to pay required court costs. The provisions of thissection also shall apply to structured residential programs, excluding securedetention facilities, established pursuant to § 16.1-309.3 for juvenileoffenders cited in a complaint for intake or in a petition before the courtthat alleges the juvenile is delinquent or in need of services or supervision.
B. Notwithstanding the provisions of subsection A, a children's residentialfacility may hire for compensated employment or for volunteer or contractualservice purposes persons who have been convicted of not more than onemisdemeanor offense under § 18.2-57 or 18.2-57.2, if 10 years have elapsedfollowing the conviction, unless the person committed such offense in thescope of his employment, volunteer, or contractual services.
If the applicant is denied employment, or the opportunity to volunteer orprovide services, at a children's residential facility because of informationappearing on his criminal history record, and the applicant disputes theinformation upon which the denial was based, upon written request of theapplicant the state agency shall furnish the applicant the procedures forobtaining his criminal history record from the Federal Bureau ofInvestigation. If the applicant has been permitted to assume duties that donot involve contact with children pending receipt of the report, thechildren's residential facility is not precluded from suspending theapplicant from his position pending a final determination of the applicant'seligibility to have responsibility for the safety and well-being of children.The information provided to the children's residential facility shall not bedisseminated except as provided in this section.
C. Those individuals listed in clauses (i), (ii), and (iii) of subsection Aalso shall authorize the children's residential facility to obtain a copy ofinformation from the central registry maintained pursuant to § 63.2-1515 onany investigation of child abuse or neglect undertaken on him. The applicantshall provide the children's residential facility with a written statement oraffirmation disclosing whether he has ever been the subject of a founded caseof child abuse or neglect within or outside the Commonwealth. The children'sresidential facility shall receive the results of the central registry searchprior to permitting an applicant to work alone with children. Children'sresidential facilities regulated or operated by the Department shall not hirefor compensated employment or allow to volunteer or provide contractualservices, persons who have a founded case of child abuse or neglect.
D. The cost of obtaining the criminal history record and the central registryinformation shall be borne by the employee or volunteer unless the children'sresidential facility, at its option, decides to pay the cost.
(2008, c. 873.)