63.2-1726 - Background check required; children's residential facilities.
§ 63.2-1726. Background check required; children's residential facilities.
A. As a condition of employment, volunteering or providing services on aregular basis, every children's residential facility that is regulated oroperated by the Departments of Social Services; Education; Military Affairs;or Behavioral Health and Developmental Services shall require any individualwho (i) accepts a position of employment at such a facility who was notemployed by that facility prior to July 1, 2007, (ii) volunteers for such afacility on a regular basis and will be alone with a juvenile in theperformance of his duties who was not a volunteer at such facility prior toJuly 1, 2007, or (iii) provides contractual services directly to a juvenilefor such facility on a regular basis and will be alone with a juvenile in theperformance of his duties who did not provide such services prior to July 1,2007; to submit to fingerprinting and to provide personal descriptiveinformation, to be forwarded along with the applicant's fingerprints throughthe Central Criminal Records Exchange to the Federal Bureau of Investigationfor the purpose of obtaining criminal history record information regardingsuch applicant. The children's residential facility shall inform theapplicant that he is entitled to obtain a copy of any background check reportand to challenge the accuracy and completeness of any such report and obtaina prompt 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 agencywhich operates or regulates the children's residential facility with whichthe applicant 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 Departments ofEducation; Behavioral Health and Developmental Services; Military Affairs; orSocial Services shall hire for compensated employment or allow to volunteeror provide contractual services persons who have been (i) convicted of or arethe subject of pending charges for the following crimes: murder ormanslaughter as set out in Article 1 (§ 18.2-30 et seq.) of Chapter 4 ofTitle 18.2; malicious wounding by mob as set out in § 18.2-41; abduction asset out in § 18.2-47 A; abduction for immoral purposes as set out in §18.2-48; assault and bodily woundings as set out in Article 4 (§ 18.2-51 etseq.) of Chapter 4 of Title 18.2; robbery as set out in § 18.2-58; carjackingas 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; sexual assault as set out in Article 7 (§ 18.2-61 et seq.) ofChapter 4 of Title 18.2; arson as set out in Article 1 (§ 18.2-77 et seq.) ofChapter 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 ofdrugs as set out in Article 1 (§ 18.2-247 et seq.) of Chapter 7 of Title18.2; drive-by shooting as set out in § 18.2-286.1; use of a machine gun in acrime of violence as set out in § 18.2-289; aggressive use of a machine gunas set out in § 18.2-290; use of a sawed off shotgun in a crime of violenceas 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; takingindecent 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 tosecure 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 childpornography as set out in § 18.2-374.1:1; electronic facilitation ofpornography 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; employingor permitting a minor to assist in an act constituting an offense underArticle 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; escapefrom 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; or (ii) convicted of anyfelony violation relating to possession of drugs set out in Article 1 (§18.2-247 et seq.) of Chapter 7 of Title 18.2 in the five years prior to theapplication date for employment, to be a volunteer, or to provide contractualservices; or (iii) convicted of any felony violation relating to possessionof drugs as set out in Article 1 (§ 18.2-247 et seq.) of Chapter 7 of Title18.2 and continue on probation or parole or have failed to pay required courtcosts. The provisions of this section also shall apply to structuredresidential programs, excluding secure detention facilities, establishedpursuant to § 16.1-309.3 for juvenile offenders cited in a complaint forintake or in a petition before the court that alleges the juvenile isdelinquent 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 Departments of Education;Behavioral Health and Developmental Services; Military Affairs; and SocialServices shall not hire for compensated employment or allow to volunteer orprovide contractual services, persons who have a founded case of child abuseor neglect. Every residential facility for juveniles which is regulated oroperated by the Department of Juvenile Justice shall be authorized to obtaina copy of the information from the central registry.
D. The Boards of Social Services; Education; Juvenile Justice; and BehavioralHealth and Developmental Services, and the Department of Military Affairs,may adopt regulations to comply with the provisions of this section. Copiesof any information received by a children's residential facility pursuant tothis section shall be available to the agency that regulates or operates suchfacility but shall not be disseminated further. The cost of obtaining thecriminal history record and the central registry information shall be borneby the employee or volunteer unless the children's residential facility, atits option, decides to pay the cost.
(1994, c. 704, § 63.1-248.7:2; 1996, c. 747; 2001, c. 138; 2002, c. 747;2007, c. 573; 2009, cc. 813, 840.)