Bill Text: VA HB2342 | 2023 | Regular Session | Enrolled
Bill Title: Background checks; employees of children and developmental services, adult substance abuse services.
Spectrum: Partisan Bill (Republican 2-0)
Status: (Passed) 2023-03-22 - Governor: Acts of Assembly Chapter text (CHAP0236) [HB2342 Detail]
Download: Virginia-2023-HB2342-Enrolled.html
Be it enacted by the General Assembly of Virginia:
1. That §§19.2-389, 37.2-203.1, 37.2-416, 37.2-506, and 37.2-607 of the Code of Virginia are amended and reenacted and that the Code of Virginia is amended by adding sections numbered 37.2-416.1 and 37.2-506.1 as follows:
§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, 4, and 6 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 foster and adoptive parent applicants of private child-placing agencies, pursuant to §§63.2-1719, 63.2-1720, and 63.2-1721, 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; however, nothing in this subdivision shall be construed to prohibit the Commissioner of Social Services' representative from issuing written certifications regarding the results of a background check that was conducted before July 1, 2021, in accordance with subsection J of §22.1-289.035 or §22.1-289.039;
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 casino gaming as set forth in Chapter 41 (§58.1-4100 et seq.) of Title 58.1, 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. 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) interventions with first offenders under §18.2-251 or (ii) 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 institutions of higher education and nonprofit private institutions of higher education 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 §23.1-805, 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, permission to enter into a shared living arrangement with a person receiving medical assistance services pursuant to a waiver, or permission for any person under contract with the community services board to serve in a direct care position on behalf of the community services board pursuant to §§37.2-506, 37.2-506.1, 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, permission to enter into a shared living arrangement with a person receiving medical assistance services pursuant to a waiver, or permission for any person under contract with the behavioral health authority to serve in a direct care position on behalf of the behavioral health authority pursuant to §§37.2-506, 37.2-506.1, 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, permission to enter into a shared living arrangement with a person receiving medical assistance services pursuant to a waiver, or permission for any person under contract with the provider to serve in a direct care position 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, 37.2-416.1, 37.2-506, 37.2-506.1, 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 Chairman of the Senate Committee on the Judiciary or the House Committee for Courts of Justice 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;
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.), Chapter 19 (§6.2-1900 et seq.), or Chapter 26 (§ 6.2-2600 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, 19, or 26 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 Education or its agents or designees for the purpose of screening individuals seeking to enter into a contract with the Department of Education or its agents or designees 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;
45. The State Corporation Commission, for the purpose of screening applicants for insurance licensure under Chapter 18 (§38.2-1800 et seq.) of Title 38.2;
46. Administrators and board presidents of and applicants for licensure or registration as a child day program or family day system, as such terms are defined in §22.1-289.02, for dissemination to the Superintendent of Public Instruction's representative pursuant to §22.1-289.013 for the conduct of investigations with respect to employees of and volunteers at such facilities pursuant to §§22.1-289.034 through 22.1-289.037, 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 Superintendent of Public Instruction'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; however, nothing in this subdivision shall be construed to prohibit the Superintendent of Public Instruction's representative from issuing written certifications regarding the results of prior background checks in accordance with subsection J of §22.1-289.035 or §22.1-289.039; and
47. 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, except as otherwise provided in subdivision A 46.
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 set forth in clause (i) of the definition of barrier crime in §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.
I. Nothing in this section shall preclude the dissemination of a person's criminal history record information pursuant to the rules of court for obtaining discovery or for review by the court.
§37.2-203.1. Licensed provider; statement to prospective employer.
The Board of Behavioral Health and Developmental Services
shall amend regulations governing licensed providers to require that every
licensed provider provide a statement regarding a current or past employee or
other individual currently or previously associated with the provider in a
capacity that requires a criminal history background check pursuant to §
37.2-416 or, 37.2-416.1, 37.2-506, or 37.2-506.1 to any
other licensed provider with which the current or past employee has applied for
employment or to fill a role that requires a criminal history background check
pursuant to §37.2-416 or, 37.2-416.1, 37.2-506, or 37.2-506.1.
The statement shall address the character, ability, and fitness for employment
in or to otherwise fill the role for which the person has applied and shall be
provided upon receipt of a request for such information from the other licensed
provider and written consent to the disclosure of such information executed by
the current or past employee or other individual currently or previously
associated with the provider in a capacity that requires a criminal history
background check pursuant to §37.2-416 or, 37.2-416.1, 37.2-506,
or 37.2-506.1. Nothing in the amended regulations shall require disclosure
of information subject to privilege or confidentiality pursuant to §
8.01-581.16, 8.01-581.17, or 32.1-127.1:03 or federal law.
§37.2-416. Background checks required; services for children and developmental services.
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
younger than 18 years of age in any program providing mental health or
substance abuse services; (ii) treatment, case management, health,
safety, development, or well-being of an individual in any program providing
developmental services; or (iii) immediately supervising a person in a position
with described in this responsibility definition.
"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) (i) 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) (ii) 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.
"Provider" means a provider who is licensed pursuant to this article and who provides (i) mental health or substance abuse services to individuals who are younger than 18 years of age or (ii) developmental services to any individual regardless of age.
"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 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, (v) any person
who enters into a shared living arrangement with a person receiving medical assistance
services pursuant to a waiver, and (vi) any person under contract with the
provider to serve in a direct care position 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:
1. Hire for compensated employment any person who has been convicted of (i) any offense set forth in clause (i), (ii), or (iii) of the definition of barrier crime in §19.2-392.02 or (ii) any offense set forth in clause (iv) of the definition of barrier crime in §19.2-392.02 (a) in the five years prior to the application date for employment or (b) if 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;
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 (i) any offense set forth in clause (i), (ii), or (iii) of the definition of barrier crime in § 19.2-392.02 or (ii) any offense set forth in clause (iv) of the definition of barrier crime in §19.2-392.02 (a) in the five years prior to the application date to be a sponsored residential service provider or (b) if such applicant 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;
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 (i) any offense set forth in clause (i), (ii), or (iii) of the definition of barrier crime in §19.2-392.02 or (ii) any offense set forth in clause (iv) of the definition of barrier crime in §19.2-392.02 (a) in the five years prior to entering into a shared living arrangement or (b) if 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; or
4. Allow any person under contract with the provider to serve in a direct care position who has been convicted of (i) any offense set forth in clause (i), (ii), or (iii) of the definition of barrier crime in §19.2-392.02 or (ii) any offense set forth in clause (iv) of the definition of barrier crime in §19.2-392.02 (a) in the five years prior to the application date for employment or (b) if 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 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 or permit any person under
contract with the provider to serve in a direct care position or permit any
person employed by a temporary agency that has entered into a contract with the
provider to provide direct care services on behalf of the provider at adult
substance abuse or adult mental health treatment programs a person who was
convicted of any violation of §18.2-51.3; any misdemeanor violation of §
18.2-56 or 18.2-56.1 or subsection A of §18.2-57; any first offense
misdemeanor violation of §18.2-57.2; any violation of §18.2-60, 18.2-89,
18.2-92, or 18.2-94; any misdemeanor violation of §18.2-282, 18.2-346, or
18.2-346.01; any 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 any substantially similar offense under the laws of another
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 or permit any person under
contract with the provider to serve in a direct care position or permit any
person employed by a temporary agency that has entered into a contract with the
provider to provide direct care services on behalf of the provider at adult
substance abuse treatment facilities a person who has been convicted of not
more than one offense under subsection C of §18.2-57, or any substantially
similar offense under the laws of another 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 person was convicted under the laws of another
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 (i) hire for compensated employment, (ii) approve as a sponsored
residential service provider, (iii) permit to enter into a shared living
arrangement, or (iv) permit any person under contract with the provider to
serve in a direct care position on behalf of the provider or permit any person
employed by a temporary agency that has entered into a contract with the
provider to provide direct care services on behalf of the provider 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. A
provider may also approve a person as a sponsored residential service provider
if (a) any adult living in the home of an applicant or (b) any person employed
by the applicant to provide services in the home in which sponsored residential
services are provided has 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 D.
Every provider shall require, as a condition of employment, approval as a
sponsored residential service provider, permission to enter into a shared
living arrangement with a person receiving medical assistance services pursuant
to a waiver, or permission for any person under contract with the provider to
serve in a direct care position, 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. E. 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. 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.
J. G. Notwithstanding any other provision of
law, a provider licensed pursuant to this article that provides services
to individuals receiving services under the state plan for medical assistance
services or any waiver thereto may disclose to the Department of Medical
Assistance Services (i) whether a criminal history background check has been
completed for a person described in subsection B for whom a criminal history
background check is required and (ii) whether the person described in
subsection B is eligible for employment, to provide sponsored residential
services, to provide services in the home of a sponsored residential service
provider, or to enter into a shared living arrangement with a person receiving
medical assistance services pursuant to a waiver.
K. H. Any person employed by a temporary agency
that has entered into a contract with the a provider and who will
serve in a direct care position on behalf of the such provider
licensed pursuant to this article shall undergo a background check that
shall include:
1. A criminal history records check through the Central Criminal Records Exchange pursuant to §19.2-389; and
2. A search of the central registry maintained pursuant to § 63.2-1515 for any founded complaint of child abuse and neglect.
Except as otherwise provided in subsection C, D, or F,
no provider licensed pursuant to this article shall permit any person
employed by a temporary agency that has entered into a contract with the
provider to provide direct care services on behalf of the provider if that
person has been convicted of (i) any offense set forth in clause (i), (ii), or
(iii) of the definition of barrier crime in §19.2-392.02 or (ii) any offense
set forth in clause (iv) of the definition of barrier crime in §19.2-392.02
(a) in the five years prior to the application date for employment or (b) if
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.
§37.2-416.1. Background checks required; adult substance abuse and mental health services.
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 adult receiving substance abuse or mental health services or (ii) immediately supervising a person in a position described in this definition.
"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.
"Provider" means a provider who is licensed pursuant to this article and who provides substance abuse or mental health services to adults.
B. Every provider shall require (i) any applicant who accepts employment in any direct care position and (ii) any person under contract with the provider to serve in a direct care position 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 shall:
1. Hire for compensated employment any person who has been convicted of (i) any offense set forth in clause (i), (ii), or (iii) of the definition of barrier crime in §19.2-392.02 or (ii) any offense set forth in clause (iv) of the definition of barrier crime in §19.2-392.02 (a) in the five years prior to the application date for employment or (b) if 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; or
2. Allow any person under contract with the provider to serve in a direct care position who has been convicted of (i) any offense set forth in clause (i), (ii), or (iii) of the definition of barrier crime in § 19.2-392.02 or (ii) any offense set forth in clause (iv) of the definition of barrier crime in §19.2-392.02 (a) in the five years prior to the application date for employment or (b) if 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 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. 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 shall not be disseminated except as provided in this section.
C. Notwithstanding the provisions of subsection B, a provider may hire for compensated employment or permit any person under contract with the provider to serve in a direct care position or permit any person employed by a temporary agency that has entered into a contract with the provider to provide direct care services on behalf of the provider at adult substance abuse or adult mental health treatment programs a person who was convicted of any violation of §18.2-51.3; any misdemeanor violation of § 18.2-56 or 18.2-56.1 or subsection A of §18.2-57; any first offense misdemeanor violation of §18.2-57.2; any violation of §18.2-60, 18.2-89, 18.2-92, or 18.2-94; any misdemeanor violation of §18.2-282, 18.2-346, or 18.2-346.01; any 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 any substantially similar offense under the laws of another 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 or permit any person under contract with the provider to serve in a direct care position or permit any person employed by a temporary agency that has entered into a contract with the provider to provide direct care services on behalf of the provider at adult substance abuse treatment facilities a person who has been convicted of not more than one offense under subsection C of §18.2-57, or any substantially similar offense under the laws of another 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 person was convicted under the laws of another 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 (i) hire for compensated employment, (ii) approve as a sponsored residential service provider, (iii) permit to enter into a shared living arrangement, or (iv) permit any person under contract with the provider to serve in a direct care position on behalf of the provider or permit any person employed by a temporary agency that has entered into a contract with the provider to provide direct care services on behalf of the provider 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. A provider may also approve a person as a sponsored residential service provider if (a) any adult living in the home of an applicant or (b) any person employed by the applicant to provide services in the home in which sponsored residential services are provided has 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. Every provider shall require, as a condition of employment, approval as a sponsored residential service provider, permission to enter into a shared living arrangement with a person receiving medical assistance services pursuant to a waiver, or permission for any person under contract with the provider to serve in a direct care position, 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 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.
J. Notwithstanding any other provision of law, a provider that provides services to individuals receiving services under the state plan for medical assistance services or any waiver thereto may disclose to the Department of Medical Assistance Services (i) whether a criminal history background check has been completed for a person described in subsection B for whom a criminal history background check is required and (ii) whether the person described in subsection B is eligible for employment, to provide sponsored residential services, to provide services in the home of a sponsored residential service provider, or to enter into a shared living arrangement with a person receiving medical assistance services pursuant to a waiver.
K. Any person employed by a temporary agency that has entered into a contract with a provider and who will serve in a direct care position on behalf of such provider shall undergo a background check that shall include:
1. A criminal history records check through the Central Criminal Records Exchange pursuant to §19.2-389; and
2. A search of the central registry maintained pursuant to §63.2-1515 for any founded complaint of child abuse and neglect.
Except as otherwise provided in subsection C, D, or F, no provider shall permit any person employed by a temporary agency that has entered into a contract with the provider to provide direct care services on behalf of the provider if that person has been convicted of (i) any offense set forth in clause (i), (ii), or (iii) of the definition of barrier crime in § 19.2-392.02 or (ii) any offense set forth in clause (iv) of the definition of barrier crime in §19.2-392.02 (a) in the five years prior to the application date for employment or (b) if 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.
§37.2-506. Background checks required; services for children and developmental services.
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
younger than 18 years of age in any program providing mental health or
substance abuse services; (ii) treatment, case management, health,
safety, development, or well-being of an individual in any program providing developmental
services; or (iii) immediately supervising a person in a position with
described in this responsibility definition.
"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) (i) 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) (ii) 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 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,
(v) any person who enters into a shared living arrangement with a person receiving
medical assistance services pursuant to a waiver, and (vi) any person under
contract to serve in a direct care position on behalf of the community services
board 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, permit to enter into a shared living arrangement with a person
receiving medical assistance services pursuant to a waiver, or permit any
person under contract to serve in a direct care position on behalf of the
community services board persons who have been convicted of (a) any offense set
forth in clause (i), (ii), or (iii) 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, the application date to be a sponsored residential service
provider, or entering into a shared living arrangement or (2) if 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 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 or permit any
person under contract to serve in a direct care position on behalf of the
community services board or permit any person employed by a temporary agency
that has entered into a contract with the community services board to provide
direct care services on behalf of the community services board at adult
substance abuse or adult mental health treatment programs a person who was
convicted of any violation of §18.2-51.3; any misdemeanor violation of §
18.2-56 or 18.2-56.1, subsection A of §18.2-57, or §18.2-57.2; any violation
of §18.2-60, 18.2-89, 18.2-92, or 18.2-94; any misdemeanor violation of §
18.2-282, 18.2-346, or 18.2-346.01; any 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 any substantially similar offense under
the laws of another 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 or permit any
person under contract to serve in a direct care position on behalf of the
community services board or permit any person employed by a temporary agency
that has entered into a contract with the community services board to provide
direct care services on behalf of the community services board at adult
substance abuse treatment programs a person who has been convicted of not more
than one offense under subsection C of §18.2-57, or any substantially similar
offense under the laws of another 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 person was convicted under the laws of another
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 (i) hire for compensated employment, (ii) approve
as a sponsored residential service provider, (iii) permit to enter into a
shared living arrangement, or (iv) permit any person under contract to serve in
a direct care position on behalf of the community services board or permit any
person employed by a temporary agency that has entered into a contract with the
community services board to provide direct care services on behalf of the
community services board 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. A community services board may also approve
a person as a sponsored residential service provider if (a) any adult living in
the home of an applicant or (b) any person employed by the applicant to provide
services in the home in which sponsored residential services are provided has
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. D. Community services boards also shall
require, as a condition of employment, approval as a sponsored residential service
provider, permission to enter into a shared living arrangement with a person
receiving medical assistance services pursuant to a waiver, or permission for
any person under contract to serve in a direct care position on behalf of the
community services board, 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. E. 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. F. Notwithstanding any other provision of
law, a community services board that provides services to individuals receiving
services under the state plan for medical assistance services or any waiver
thereto may disclose to the Department of Medical Assistance Services (i)
whether a criminal history background check has been completed for a person
described in subsection B for whom a criminal history background check is
required and (ii) whether the person described in subsection B is eligible for
employment, to provide sponsored residential services, to provide services in
the home of a sponsored residential service provider, or to enter into a shared
living arrangement with a person receiving medical assistance services pursuant
to a waiver.
J. G. 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.
K. H. Any person employed by a temporary agency
that has entered into a contract with a community services board and who will
serve in a direct care position on behalf of the such community
services board shall undergo a background check that shall include:
1. A criminal history records check through the Central Criminal Records Exchange pursuant to §19.2-389; and
2. A search of the central registry maintained pursuant to § 63.2-1515 for any founded complaint of child abuse and neglect.
Except as otherwise provided in subsection C, D, or F,
no community services board shall permit any person employed by a temporary
agency that has entered into a contract with the community services board to
provide direct care services on behalf of the community services board if that
person has been convicted of (i) any offense set forth in clause (i), (ii), or
(iii) of the definition of barrier crime in §19.2-392.02 or (ii) any offense
set forth in clause (iv) of the definition of barrier crime in §19.2-392.02
(a) in the five years prior to the application date for employment, the application
date to be a sponsored residential service provider, or entering into a shared
living arrangement or (b) if 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.
§37.2-506.1. Background checks required; adult substance abuse and mental health services.
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 adult receiving substance abuse or mental health services or (ii) immediately supervising a person in a position described in this definition.
"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.
B. Every community services board shall require (i) any applicant who accepts employment in any direct care position with the community services board and (ii) any person under contract to serve in a direct care position on behalf of the community services board 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, permit to enter into a shared living arrangement with a person receiving medical assistance services pursuant to a waiver, or permit any person under contract to serve in a direct care position on behalf of the community services board persons who have been convicted of (a) any offense set forth in clause (i), (ii), or (iii) 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, the application date to be a sponsored residential service provider, or entering into a shared living arrangement or (2) if 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 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 or permit any person under contract to serve in a direct care position on behalf of the community services board or permit any person employed by a temporary agency that has entered into a contract with the community services board to provide direct care services on behalf of the community services board at adult substance abuse or adult mental health treatment programs a person who was convicted of any violation of §18.2-51.3; any misdemeanor violation of § 18.2-56 or 18.2-56.1, subsection A of §18.2-57, or §18.2-57.2; any violation of §18.2-60, 18.2-89, 18.2-92, or 18.2-94; any misdemeanor violation of § 18.2-282, 18.2-346, or 18.2-346.01; any offense set forth in clause (iii) of the definition of barrier crime in §19.2-392.02, except an offense pursuant to subdivision H 1 or H 2 of §18.2-248; or any substantially similar offense under the laws of another 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 or permit any person under contract to serve in a direct care position on behalf of the community services board or permit any person employed by a temporary agency that has entered into a contract with the community services board to provide direct care services on behalf of the community services board at adult substance abuse treatment programs a person who has been convicted of not more than one offense under subsection C of §18.2-57, or any substantially similar offense under the laws of another 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 person was convicted under the laws of another 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 (i) hire for compensated employment or (ii) permit any person under contract to serve in a direct care position on behalf of the community services board or permit any person employed by a temporary agency that has entered into a contract with the community services board to provide direct care services on behalf of the community services board 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 or permission for any person under contract to serve in a direct care position on behalf of the community services board, 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. Notwithstanding any other provision of law, a community services board that provides services to individuals receiving services under the state plan for medical assistance services or any waiver thereto may disclose to the Department of Medical Assistance Services (i) whether a criminal history background check has been completed for a person described in subsection B for whom a criminal history background check is required and (ii) whether the person described in subsection B is eligible for employment.
J. Any person employed by a temporary agency that has entered into a contract with a community services board and who will serve in a direct care position on behalf of such community services board shall undergo a background check that shall include:
1. A criminal history records check through the Central Criminal Records Exchange pursuant to §19.2-389; and
2. A search of the central registry maintained pursuant to §63.2-1515 for any founded complaint of child abuse and neglect.
Except as otherwise provided in subsection C, D, or F, no community services board shall permit any person employed by a temporary agency that has entered into a contract with the community services board to provide direct care services on behalf of the community services board if that person has been convicted of (i) any offense set forth in clause (i), (ii), or (iii) of the definition of barrier crime in §19.2-392.02 or (ii) any offense set forth in clause (iv) of the definition of barrier crime in §19.2-392.02 (a) in the five years prior to the application date for employment, the application date to be a sponsored residential service provider, or entering into a shared living arrangement or (b) if 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.
§37.2-607. Background check required.
A behavioral health authority shall fulfill the duties of and
be subject to the employee background check requirements that are applicable to
community services boards, as set forth in § §§ 37.2-506 and
37.2-506.1.
