Section 40. Identifying who is covered by this regulation

A. This regulation applies to:

1. Licensed family day homes;

2. Licensed family day systems;

3. Family day homes approved by family day systems;

4. Licensed child-placing agencies;

5. Licensed independent foster homes;

6. Foster and adoptive homes approved by child-placing agencies;

7. Voluntarily registered family day homes;

8. Religious exempt child day centers; and

9. Licensed child day centers.

B. Except as provided in 22VAC40-191-50 A, no person with a disqualifying background who has not been granted a waiver according to 22VAC40-191-90 may operate or volunteer or work at a facility governed by this chapter.

C. Background checks are required at the time of initial application.

1. These background checks are required at the time of initial application for licensure, registration, or approval:

	Who	What	When
	a. Any applicant	Sworn statement or affirmation, search of central registry, and criminal history record check	Upon application for licensure or registration as a child welfare agency
	b. Any agent at the time of application who is or will be involved in the day-to-day operations of the child welfare agency or who is or will be alone with, in control of, or supervising one or more of the children	Same	Same
	c. Any other adult living in the home of an applicant for licensure or registration as a family day home, or any existing employee or volunteer	Same	Upon application for licensure or registration as a family day home
	d. Prospective foster or adoptive parent	Sworn statement or affirmation, search of central registry, search of child abuse and neglect registry maintained by any other state in which the individual has resided in the last five years, and national criminal background check	Prior to approval by child-placing agency
	e. Birth parent of a child in a foster care placement (unless the birth parent has revoked an entrustment agreement pursuant to § 63.2-1223 or 63.2-1817 of the Code of Virginia, or a local board or birth parent revokes a placement agreement while legal custody remains with the parent, parents, or guardians pursuant to § 63.2-900 of the Code of Virginia)	Sworn statement or affirmation, search of central registry, search of child abuse and neglect registry maintained by any other state in which the individual has resided in the last five years, and national criminal background check	Prior to placement of a child with birth parent
	f. Other adults living in a prospective foster or adoptive home	Sworn statement or affirmation, search of central registry, search of child abuse and neglect registry maintained by any other state in which the individual has resided in the last five years, and national criminal background check	Prior to approval by child-placing agency
	g. Operator of family day home requesting approval by family day system	Sworn statement or affirmation, search of central registry, and criminal history record check	Upon request for approval by family day system
	h. Any other adult residing in the family day home requesting approval and any employee or volunteer of a family day home	Same	Upon request by operator for approval by family day system

2. These background checks are required at the time of initial application for religious exemption status:

	Who	What	When
	Any person who will be expected to be alone with one or more children enrolled in a religious exempt child day center except a parent-volunteer, as defined in this regulation, or a parent or guardian who may be left alone with his or her own child	Documentary evidence of sworn statement or affirmation, search of the central registry, and criminal history record check	With the written request for religious exemption status

D. Background checks are required after the initial licensure, registration, approval, or receipt of religious exemption status.

1. These background checks are required after initial licensure, registration, or approval:

	Who	What	When
	a. New person designated as applicant, licensee, registrant, family day home operator approved by a family day system, or agent who is or will be involved in the day-to-day operations of the facility or who is or will be alone with, in control of, or supervising one or more of the children	Sworn statement or affirmation	Whenever an applicant, licensee, approved family day home operator, or registrant changes
		Search of central registry and criminal history record check	Before the end of 30 days after the change
	b. Any employee of a licensed, registered, and approved facility who is involved in the day-to-day operations or who is alone with, in control of, or supervising one or more children	Sworn statement or affirmation	Prior to first day of employment at the facility
		Search of central registry and criminal history record check	Before 30 days of employment at the facility ends
	c. Any applicant, licensee, family day home operator approved by a family day system, agent, employee, volunteer, and person living in the family day home who is required to have background checks	Sworn statement or affirmation, search of central registry and criminal history record check	Before three years since the dates of the last sworn statement or affirmation, most recent central registry finding and most recent criminal history record check report
	d. Voluntary registration provider, provider assistant, substitute provider, if any, and any adult residing in the home	Sworn statement or affirmation, search of central registry and criminal history record check	90 days before the date of application for renewal of the current certificate of registration (The application for renewal must be received by the contracting organization no later than 45 days before the expiration of the current certificate of registration.)
	e. Volunteer at licensed, registered, or approved facility who will be alone with any child in the performance of duties, excluding a parent-volunteer for children attending a licensed, registered, or approved program	Sworn statement or affirmation	Prior to first day of service at the facility
		Search of central registry and criminal history record check	Before 30 days of service at the facility elapses
	f. Foster parent approved by a licensed child-placing agency, in an independent foster home, or an adoptive parent approved by a licensed child-placing agency, until the adoption is final	Sworn statement or affirmation, search of central registry, and criminal history record check	Before three years since the dates of the last sworn statement or affirmation, most recent central registry finding, and most recent criminal history record check report or national criminal background check
	g. All adult household members residing in the home of the foster parent approved by a licensed child-placing agency, foster parent in an independent foster home, or an adoptive parent approved by a licensed child-placing agency, until the adoption is final	Sworn statement or affirmation, search of central registry, and criminal history record check	Before three years since the dates of the last sworn statement or affirmation, most recent central registry finding, and most recent criminal history record check report or national criminal background check

2. These background checks are required after receipt of the initial religious exemption status letter.

Annually, prior to the expiration date in the current exemption letter, the religious exempt child day center must file with the department documentary evidence that the center is in compliance with the following:

	Who	What	When
	Prospective employee, volunteer, or any other person who is expected to be alone with one or more children enrolled in the religious exempt child day center except a parent-volunteer, or a parent or guardian who may be left alone with his or her own child	Sworn statement or affirmation	Before employment or commencement of service at the facility
		Search of central registry and criminal history record check, as requested by the individual	Within 30 days of employment or commencement of service

3. Background checks are required for independent contract employees and employees hired by a contract agency.

If a licensed, registered, or approved facility uses independent contract employees or contract employees hired by a contract agency who will be involved in the day-to-day operations of the facility or who will be alone with, in control of, or supervising one or more children, the facility must:

a. Obtain background checks according to the above requirements for employees, or view the original required background checks maintained by the contract employee or contract agency;

b. Accept all satisfactory background checks dated less than six months before independent contract employees or contract employees hired by contract agencies begin providing services at facilities;

c. Make copies, and keep them at the licensed, registered, or approved facilities. Staff must write on the copies of the criminal record reports that they are photocopies of originals that facility staff verified; and

d. Provide a sworn statement or affirmation, search of central registry and criminal history record check before three years since the dates of the last sworn statement or affirmation, most recent central registry finding and most recent criminal history record check report.

4. A person 18 years of age and older must have background checks:

	Who	What	When
	a. Person living in: The home of an applicant* or The home of a licensed or registered family day home provider	Sworn statement or affirmation	When person age 18 years or older begins residing in the home or when a person in the home becomes 18 years old
		Search of central registry and criminal history record check, as requested by the individual	Within 30 days of a person 18 years of age or older beginning to reside in the home or a person in the home becoming 18 years old
	b. Person living in the home of (i) a foster parent approved by a licensed child-placing agency, (ii) a foster parent in an independent foster home, or (iii) until the adoption is final, an adoptive parent approved by a licensed child-placing agency	Sworn statement or affirmation	When a person age 18 years or older begins residing in the home or when a person in the home becomes 18 years old
		Search of central registry, search of child abuse and neglect registry maintained by any other state in which the individual has resided in the last five years, and national criminal background check	Within 30 days of a person 18 years of age or older beginning to reside in the home or a person in the home becoming 18 years old
	*Note: This does not apply to applicants for family day systems, licensed child-placing agencies, child day centers, or to religious exempt child day centers.

5. A person 14 years of age and older must have a search of the central registry and make the information available for regulatory purposes:

	Who	What	When
	a. Person living in: An applicant's home, Home of a licensed or registered family day home provider, A foster home approved by a licensed child-placing agency, An independent foster home, or An adoptive home approved by a licensed child-placing agency, until the adoption is final	Child protective services central registry check	Within 30 days of a 14-year-old beginning to reside in the home or a person in the home becoming 14 years old
	b. Exception: A person 14 years of age up to 18 years of age who is placed in an approved foster or adoptive home by a child-placing agency is not required to have a search of the central registry.

6. A facility must not accept a required criminal history record report or a central registry finding from an applicant, licensee, registrant, or other person required to obtain background checks that is dated more than 90 days prior to the date of employment, volunteering, residing in the home, or approving a family day home or foster or adoptive home.

7. Exception: See provisions for contracting agencies in subdivision 3 of this subsection.

8. The department must not accept a required criminal history record report or a central registry finding from an applicant, licensee, registrant, or person who signs the statement of intent to operate a religious exempt center that is dated more than 90 days prior to date of licensure, registration, approval or exemption, or from the date when the person designated as the applicant or licensee changes.

9. The background checks remain valid at the facility if no more than 12 consecutive months have passed from when a person (i) began a leave of absence from that facility; (ii) was terminated from employment at that facility; or (iii) was transferred to a facility owned and operated by the same employer or entity, unless there is a criminal conviction or a founded complaint of child abuse and neglect during that period.

Historical Notes

Derived from Volume 20, Issue 11, eff. April 1, 2004; Errata, 20:12 VA.R. 1526 February 23, 2004; amended, Virginia Register Volume 20, Issue 22, eff. September 1, 2004; Volume 21, Issue 18, eff. July 1, 2005; Volume 22, Issue 22, eff. September 1, 2006; Volume 30, Issue 03, eff. December 1, 2013.

Statutory Authority

§§ 63.2-217 and 63.2-901.1 of the Code of Virginia.