2006 Code of Virginia § 37.2-416 - Background checks required

37.2-416. Background checks required.

A. As used in this section, the term "direct consumer care position" meansany position that includes responsibility for (i) treatment, case management,health, safety, development, or well-being of a consumer or (ii) immediatelysupervising a person in a position with this responsibility.

As used in this section, "hire for compensated employment" does not include(i) a promotion from one adult substance abuse treatment position to anothersuch position within the same licensee licensed pursuant to this article or(ii) new employment in an adult substance abuse treatment position in anotheroffice or program licensed pursuant to this article if the person employedprior to July 1, 1999, in a licensed program had no convictions in the fiveyears prior to the application date for employment. As used in this section,"hire for compensated employment" includes (a) a promotion or transfer froman adult substance abuse treatment position to any mental health or mentalretardation direct consumer care position within the same licensee licensedpursuant to this article or (b) new employment in any mental health or mentalretardation direct consumer care position in another office or program of thesame licensee licensed pursuant to this article for which the person haspreviously worked in an adult substance abuse treatment position.

B. Every provider licensed pursuant to this article shall require anyapplicant who accepts employment in any direct consumer care position tosubmit to fingerprinting and provide personal descriptive information to beforwarded through the Central Criminal Records Exchange to the Federal Bureauof Investigation (FBI) for the purpose of obtaining national criminal historyrecord information regarding the applicant. Except as otherwise provided insubsections C or E, no provider licensed pursuant to this article shall hirefor compensated employment persons who have been convicted of any offenselisted in subsection B of 37.2-314.

The Central Criminal Records Exchange, upon receipt of an individual's recordor notification that no record exists, shall submit a report to therequesting authorized officer or director of a provider licensed pursuant tothis article. If any applicant is denied employment because of informationappearing on the criminal history record and the applicant disputes theinformation upon which the denial was based, the Central Criminal RecordsExchange shall, upon written request, furnish to the applicant the proceduresfor obtaining a copy of the criminal history record from the FBI. Theinformation provided to the authorized officer or director of a providerlicensed pursuant to this article shall not be disseminated except asprovided in this section.

C. Notwithstanding the provisions of subsection B, a provider may hire forcompensated employment at adult substance abuse treatment facilities a personwho was convicted of a misdemeanor violation relating to (i) unlawful hazing,as set out in 18.2-56; or (ii) reckless handling of a firearm, as set outin 18.2-56.1; or any misdemeanor or felony violation related to (a)reckless endangerment of others by throwing objects, as set out in 18.2-51.3; (b) threat, as set out in 18.2-60; (c) breaking and entering adwelling house with intent to commit other misdemeanor, as set out in 18.2-92; or (d) possession of burglarious tools, as set out in 18.2-94; orany felony violation relating to the distribution of drugs, as set out inArticle 1 ( 18.2-247 et seq.) of Chapter 7 of Title 18.2, except an offensepursuant to subsections H 1 and H 2 of 18.2-248; or an equivalent offensein another state, if the hiring provider determines, based upon a screeningassessment, that the criminal behavior was substantially related to theapplicant's substance abuse and that the person has been successfullyrehabilitated and is not a risk to consumers based on his criminal historybackground and his substance abuse history.

D. The hiring provider and a screening contractor designated by theDepartment shall screen applicants who meet the criteria set forth insubsection C to assess whether the applicants have been rehabilitatedsuccessfully and are not a risk to consumers based on their criminal historybackgrounds and substance abuse histories. To be eligible for such screening,the applicant shall have completed all prison or jail terms, shall not beunder probation or parole supervision, shall have no pending charges in anylocality, shall have paid all fines, restitution, and court costs for anyprior convictions, and shall have been free of parole or probation for atleast five years for all convictions. In addition to any supplementaryinformation the provider or screening contractor may require or the applicantmay wish to present, the applicant shall provide to the screening contractora statement from his most recent probation or parole officer, if any,outlining his period of supervision and a copy of any pre-sentencing orpost-sentencing report in connection with the felony conviction. The cost ofthis screening shall be paid by the applicant, unless the licensed providerdecides to pay the cost.

E. Notwithstanding the provisions of subsection B, a provider may hire forcompensated employment 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 the offense whileemployed in a direct consumer care position.

F. Providers licensed pursuant to this article also shall require, as acondition of employment for all applicants, written consent and personalinformation necessary to obtain a search of the registry of foundedcomplaints of child abuse and neglect that is maintained by the Department ofSocial Services pursuant to 63.2-1515.

G. The cost of obtaining the criminal history record and search of the childabuse and neglect registry record shall be borne by the applicant, unless theprovider licensed pursuant to this article decides to pay the cost.

H. A person who complies in good faith with the provisions of this sectionshall not be liable for any civil damages for any act or omission in theperformance of duties under this section unless the act or omission was theresult of gross negligence or willful misconduct.

(1999, c. 685, 37.1-183.3; 2001, cc. 486, 506, 784; 2002, c. 712; 2003, c.468; 2005, c. 716.)