2006 Code of Virginia § 19.2-392.02 - National criminal background checks by businesses and organizations regarding employees or voluntee...

19.2-392.02. National criminal background checks by businesses andorganizations regarding employees or volunteers providing care to children,the elderly and disabled.

A. For purposes of this section:

"Barrier crime" means any offense set forth in 63.2-1719 or 63.2-1726.

"Barrier crime information" means the following facts concerning a personwho has been arrested for, or has been convicted of, a barrier crime,regardless of whether the person was a juvenile or adult at the time of thearrest or conviction: full name, race, sex, date of birth, height, weight,fingerprints, a brief description of the barrier crime or offenses for whichthe person has been arrested or has been convicted, the disposition of thecharge, and any other information that may be useful in identifying personsarrested for or convicted of a barrier crime.

"Care" means the provision of care, treatment, education, training,instruction, supervision, or recreation to children, the elderly or disabled.

"Department" means the Department of State Police.

"Employed by" means any person who is employed by, volunteers for, seeks tobe employed by, or seeks to volunteer for a qualified entity.

"Identification document" means a document made or issued by or under theauthority of the United States government, a state, a political subdivisionof a state, a foreign government, political subdivision of a foreigngovernment, an international governmental or an internationalquasi-governmental organization that, when completed with informationconcerning a particular individual, is of a type intended or commonlyaccepted for the purpose of identification of individuals.

"Provider" means a person who (i) is employed by a qualified entity, andhas, seeks to have, or may have unsupervised access to a child or to anelderly or disabled person to whom the qualified entity provides care or (ii)owns, operates or seeks to own or operate a qualified entity.

"Qualified entity" means a business or organization that provides care tochildren, the elderly or disabled, whether governmental, private, for profit,nonprofit or voluntary, except organizations exempt pursuant to subdivision A10 of 63.2-1715.

B. Notwithstanding 63.2-1719 to 63.2-1721 and 63.2-1724, a qualifiedentity may request the Department of State Police to conduct a nationalcriminal background check on any provider who is employed by such entity. Noqualified entity may request a national criminal background check on aprovider until such provider has:

1. Been fingerprinted at any local or state law-enforcement agency andprovided the fingerprints to the qualified entity; and

2. Completed and signed a statement, furnished by the entity, that includes(i) his name, address, and date of birth as it appears on a valididentification document, (ii) a disclosure of whether or not the provider hasever been convicted of or is the subject of pending charges for a criminaloffense within or outside the Commonwealth, and if the provider has beenconvicted of a crime, a description of the crime and the particulars of theconviction, (iii) a notice to the provider that the entity may request abackground check, (iv) a notice to the provider that he is entitled to obtaina copy of any background check report, to challenge the accuracy andcompleteness of any information contained in any such report, and to obtain aprompt determination as to the validity of such challenge before a finaldetermination is made by the Department, and (v) a notice to the providerthat prior to the completion of the background check the qualified entity maychoose to deny the provider unsupervised access to children, the elderly ordisabled for whom the qualified entity provides care.

C. Upon receipt of (i) a qualified entity's written request to conduct abackground check on a provider, (ii) the provider's fingerprints, and (iii) acompleted, signed statement as described in subsection B, the Departmentshall make a determination whether the provider has been convicted of or isthe subject of charges of a barrier crime. To conduct its determinationregarding the provider's barrier crime information, the Department shallaccess the national criminal history background check system, which ismaintained by the Federal Bureau of Investigation and is based onfingerprints and other methods of identification, and shall access theCentral Criminal Records Exchange maintained by the Department. If theDepartment receives a background report lacking disposition data, theDepartment shall conduct research in whatever state and local record-keepingsystems are available in order to obtain complete data. The Department shallmake reasonable efforts to respond to a qualified entity's inquiry within 15business days.

D. Any background check conducted pursuant to this section for a provideremployed by a private entity shall be screened by the Department of StatePolice. If the provider has been convicted of or is under indictment for abarrier crime, the qualified entity shall be notified that the provider isnot qualified to work or volunteer in a position that involves unsupervisedaccess to children, the elderly or disabled.

E. Any background check conducted pursuant to this section for a provideremployed by a governmental entity shall be provided to that entity.

F. In the case of a provider who desires to volunteer at a qualified entityand who is subject to a national criminal background check, the Departmentand the Federal Bureau of Investigation may each charge the provider thelesser of $18 or the actual cost to the entity of the background checkconducted with the fingerprints.

G. The failure to request a criminal background check pursuant to subsectionB shall not be considered negligence per se in any civil action.

(2000, c. 860; 2005, c. 217.)