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 or adult mental healthtreatment position to another such position within the same licensee licensedpursuant to this article or (ii) new employment in an adult substance abuseor adult mental health treatment position in another office or programlicensed 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 theapplication date for employment. As used in this section, "hire forcompensated employment" includes (a) a promotion or transfer from an adultsubstance abuse treatment position to any mental health or mental retardationdirect consumer care position within the same licensee licensed pursuant tothis article or (b) new employment in any mental health or mental retardationdirect consumer care position in another office or program of the samelicensee 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 or adult mental healthtreatment facilities a person who was convicted of a misdemeanor violationrelating to (i) unlawful hazing, as set out in § 18.2-56; (ii) recklesshandling of a firearm, as set out in § 18.2-56.1; or (iii) assault andbattery, as set out in subsection A of § 18.2-57; or any misdemeanor orfelony violation related to (a) reckless endangerment of others by throwingobjects, as set out in § 18.2-51.3; (b) threat, as set out in § 18.2-60; (c)breaking and entering a dwelling house with intent to commit othermisdemeanor, as set out in § 18.2-92; or (d) possession of burglarious tools,as set out in § 18.2-94; or any felony violation relating to the distributionof drugs, as set out in Article 1 (§ 18.2-247 et seq.) of Chapter 7 of Title18.2, except an offense pursuant to subsections H 1 and H 2 of § 18.2-248; oran equivalent offense in another state, if the hiring provider determines,based upon a screening assessment, that the criminal behavior wassubstantially related to the applicant's substance abuse or mental illnessand that the person has been successfully rehabilitated and is not a risk toconsumers based on his criminal history background and his substance abuse ormental illness 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 or mental illness histories. To be eligiblefor such screening, the applicant shall have completed all prison or jailterms, shall not be under probation or parole supervision, shall have nopending charges in any locality, shall have paid all fines, restitution, andcourt costs for any prior convictions, and shall have been free of parole orprobation for at least five years for all convictions. In addition to anysupplementary information the provider or screening contractor may require orthe applicant may wish to present, the applicant shall provide to thescreening contractor a statement from his most recent probation or paroleofficer, if any, outlining his period of supervision and a copy of anypre-sentencing or post-sentencing report in connection with the felonyconviction. The cost of this screening shall be paid by the applicant, unlessthe licensed provider decides 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; 2008, cc. 383, 407.)