Virginia Administrative Code
Title 8 - EDUCATION
Agency 20 - STATE BOARD OF EDUCATION
Chapter 770 - BACKGROUND CHECKS FOR CHILD DAY PROGRAMS AND FAMILY DAY SYSTEMS
Section 8VAC20-770-10 - Defining words and phrases
The following words and terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise:
"Agent" means a person who is empowered to act on behalf of the applicant that is an association, partnership, limited liability company, business trust, public agency, or corporation in matters relating to a child day program or family day system.
"Applicant" means the person or persons applying for approval as a (i) licensed family day home; (ii) licensed family day system; (iii) voluntarily registered family day home; (iv) family day home approved by a licensed family day system; (v) religious exempt child day center or (vi) licensed child day center. In the case of a sole proprietorship, the applicant is the individual owner. In the case of a partnership, the applicants are all the partners. If the applicant is a corporation, association, or business trust, the applicants are officers. If the applicant is a limited liability company, the applicants are the members or managers. If the applicant is a public agency, the applicant is the person responsible for the overall operation of the public agency.
"Approved" means having obtained the status of approval through the process required in Minimum Standards for Licensed Family Day Systems (8VAC20-810). Approved facilities are family day homes approved by licensed family day systems.
"Background checks" means a sworn statement or affirmation, a criminal history record report, and a child protective services central registry check.
"Barrier crime" means a conviction identified at § 22.1-289.034 in the Code of Virginia. The convictions, and Code of Virginia references, are: a felony violation of a protective order as set out in § 16.1-253.2, murder or manslaughter as set out in Article 1 (§ 18.2-30 et seq.), malicious wounding by mob as set out in § 18.2-41, abduction as set out in subsection A or B of § 18.2-47, abduction for immoral purposes as set out in § 18.2-48, assault and bodily woundings as set out in Article 4 (§ 18.2-51 et seq.), robbery as set out in § 18.2-58, carjacking as set out in § 18.2-58.1, extortion by threat as set out in § 18.2-59, felony stalking as set out in § 18.2-60.3, a felony violation of a protective order as set out in § 18.2-60.4, sexual assault as set out in Article 7 (§ 18.2-61 et seq.) of Chapter 4 of Title 18.2, arson as set out in Article 1 (§ 18.2-77 et seq.) of Chapter 5 of Title 18.2, burglary as set out in Article 2 (§ 18.2-89 et seq.) of Chapter 5 of Title 18.2, any felony violation relating to possession or distribution of drugs as set out in Article 1 (§ 18.2-247 et seq.) of Chapter 7 of Title 18.2, drive-by shooting as set out in § 18.2-286.1, use of a machine gun in a crime of violence as set out in § 18.2-289, aggressive use of a machine gun as set out in § 18.2-290, use of a sawed-off shotgun in a crime of violence as set out in subsection A of § 18.2-300, failure to secure medical attention for an injured child as set out in § 18.2-314, pandering as set out in § 18.2-355, crimes against nature involving children as set out in § 18.2-361, incest as set out in § 18.2-366, taking indecent liberties with children as set out in § 18.2-370 or § 18.2-370.1, abuse and neglect of children as set out in § 18.2-371.1, obscenity offenses as set out in § 18.2-374.1, possession of child pornography as set out in § 18.2-374.1:1, electronic facilitation of pornography as set out in § 18.2-374.3, abuse and neglect of incapacitated adults as set out in § 18.2-369, employing or permitting a minor to assist in an act constituting an offense under Article 5 (§ 18.2-372 et seq.) of Chapter 8 of Title 18.2 as set out in § 18.2-379, delivery of drugs to prisoners as set out in § 18.2-474.1, escape from jail as set out in § 18.2-477, felonies by prisoners as set out in § 53.1-203; or an equivalent offense in another state.
"Board" means State Board of Education.
"Central registry" means the record of founded complaints of child abuse and neglect maintained by the Department of Social Services.
"Central registry finding" means the record of founded complaints of child abuse and neglect for an individual.
"Central Criminal Records Exchange" or "CCRE" means the information system containing conviction data of crimes committed in Virginia. The system is maintained by the Department of State Police.
"Child day program" means a regularly operating service arrangement for children where, during the absence of a parent or guardian, a person or organization has agreed to assume responsibility for the supervision, protection, and well-being of a child under the age of 13 for less than a 24-hour period.
"Contract agency" means an entity with which the facility or a parent has an agreement to provide services to a child or children while attending the facility.
"Contract employee" means a person with whom the facility or a parent has an agreement to provide services to a child or children while attending the facility.
"Contracting organization" means an agency that has been designated by the Department of Education to administer the voluntary registration program for family day homes.
"Criminal history record check" means the process the Department of State Police uses to generate a criminal record report on a person. The check may be a state check generated solely through the Central Criminal Records Exchange or a check forwarded through the Central Criminal Records Exchange to the Federal Bureau of Investigation for the purpose of obtaining national criminal history record information.
"Criminal history record report" means either the criminal record clearance or the criminal history record issued by the Central Criminal Records Exchange, Department of State Police. The report identifies convictions within the Commonwealth.
"Department" means the Department of Education.
"Department representative" means an employee of the department who carries out regulatory duties or an agency acting as an authorized agent of the department carrying out approval functions. Licensed family day systems have authority to approve family day homes.
"Disqualifying background" means having an offense, as defined in § 22.1-289.032 of the Code of Virginia. For the purpose of this chapter, having been the subject of a founded abuse or neglect complaint as described in "offense" includes records that have been purged from the child abuse and neglect central registry. However, no person is considered to be the subject of a founded complaint of child abuse or neglect until a decision upholding the finding has been rendered by the hearing officer after the administrative hearing, provided the person complies with the requirements for requesting an administrative hearing. No person is considered to be the subject of a founded complaint of child abuse or neglect if the child abuse or neglect finding is overturned by an administrative hearing or a subsequent court decision.
"Employee" means a person hired by a facility or with whom the facility has an employment agreement. A provider assistant in a family day home is considered an employee in this chapter.
"Facility" means
(i) a licensed family day home; (ii) a licensed family day system; (iii) a voluntarily registered family day home; (iv) a family day home approved by a licensed family day system; (v) a licensed child day center; (vi) a religious exempt child day center; and (vii) an applicant seeking a waiver in order to establish one of the above listed entities.
"Family day home" means a child day program offered in the residence of the provider or the home of any of the children in care for one through 12 children under the age of 13 years, exclusive of the provider's own children and any children who reside in the home, when at least one child receives care for compensation. The provider of a licensed or registered family day home must disclose to the parents or guardians of children in his care the percentage of time per week that persons other than the provider will care for the children. Family day homes serving five through 12 children, exclusive of the provider's own children and any children who reside in the home, must be licensed. No family day home shall care for more than four children under the age of two years, including the provider's own children and any children who reside in the home, unless the family day home is licensed or voluntarily registered. However, a family day home where the children in care are all related to the provider by blood or marriage is not required to be licensed.
"Family day system" means any person that approves family day homes as members of its system; that refers children to available family day homes in that system; and that, through contractual arrangement, may provide central administrative functions including, but not limited to, training of operators of member homes; technical assistance and consultation to operators of member homes; inspection, supervision, monitoring, and evaluation of member homes; and referral of children to available health and social services.
"Good character and reputation" means that the person (i) maintains business, professional, family, and community relationships that are characterized by honesty, fairness, truthfulness and dependability and (ii) has a history or pattern of behavior that demonstrates that the person is suitable and able to care for, guide, supervise, and protect children.
"Involved in the day-to-day operations" means:
1. In a supervisory or management position, making daily decisions regarding the operation of the facility;
2. Counted by the facility for purposes of staff-to-children ratios;
3. Employed by a licensed family day system as a home visitor; or
4. Having access to child-related and client-related records or to facility personnel records.
"Licensed" means having met the requirements of and obtained licensure as a licensed family day system, licensed child day program, or licensed family day home.
"Living in" means to reside in a place for an extended or permanent period of time.
"Local agency" means local department of social services.
"May" means has permission.
"Must" means the action is a requirement.
"Must not" means the action is prohibited.
"National criminal background check" means criminal history record information from the Federal Bureau of Investigation.
"Offense" means a (i) conviction of a barrier crime, (ii) conviction of any other felony not included in the definition of barrier crime unless five years have elapsed since conviction, (iii) founded complaint of child abuse or neglect within or outside the Commonwealth, or (iv) a conviction of an offense set forth in § 9.1-902 of the Code of Virginia or a finding that a person is not guilty by reason of insanity in accordance with Chapter 11.1 (§ 19.2-182.2 et seq.) of Title 19.2 of the Code of Virginia of an offense set forth in § 9.1-902 that results in the person's requirement to register with the Sex Offender and Crimes Against Minors Registry pursuant to § 9.1-901 of the Code of Virginia, or any similar registry in any other state. Convictions include prior adult convictions and juvenile convictions or adjudications of delinquency based on a crime that would be a felony if committed by an adult within or outside the Commonwealth.
"Other felony" means conviction for any felony in the last five years that is not a barrier crime felony.
"Parent-volunteer" means someone supervising, without pay, a group of children that includes the parent-volunteer's own child in a program that operates no more than four hours per day, provided that the parent-volunteer works under the direct supervision of a person who has received a clearance pursuant to § 22.1-289.035 or 22.1-289.039 of the Code of Virginia.
"Registered" means having obtained the status of registration through the process required in Voluntary Registration of Family Day Homes - Requirements for Providers (8VAC20-850).
"Registered family day home" means any family day home that has met the standards for voluntary registration for such homes and obtained a certificate of registration from the Superintendent.
"Religious exempt center" means an unlicensed child day center operated or conducted under the auspices of a religious institution that has filed with the Superintendent a satisfactory annual statement of intent to operate a child day center and other information as specified in § 22.1-289.031 of the Code of Virginia and has a letter of exemption from the Superintendent.
"Search of central registry" means the process the Virginia Department of Social Services' Child Protective Services Unit uses to generate a central registry report on a person.
"Superintendent" means Superintendent of Public Instruction or his designee.
"Sworn statement or affirmation" means a statement completed by a person attesting to whether he has ever been (i) convicted of or the subject of pending charges of any crime within or outside the Commonwealth or an equivalent offense outside the Commonwealth or (ii) the subject of a founded complaint of child abuse or neglect within or outside the Commonwealth. Additionally for family day homes, the provider affirms if he, or any person known to the provider who resides in the home, has a sex offense conviction or is the subject of a founded complaint of child abuse or neglect within or outside the Commonwealth. Any person making a false statement regarding any such offense shall be guilty of a Class 1 misdemeanor pursuant to § 22.1-289.035 of the Code of Virginia.
"8VAC" means Title 8 of the Virginia Administrative Code. This is the education title.
"Visit" means a stay or sojourn as a quest for no longer than 30 calendar days.
"Volunteer" means a person who provides services without pay and who is alone with a child or children in performance of his duties.
8VAC20-770-20. Describing background checks.
A. The background checks covered by this chapter are:
1. Sworn statement or affirmation;
2. Criminal history record check;
3. National criminal background check; and
4. Central registry search.
B. The provisions for background checks are in §§ 22.1-289.015 and 22.1-289.034 through 22.1-289.041 of the Code of Virginia.
C. Provisions for enforcement of background check regulations and other licensing, registration, and approval standards are in Chapter 14.1 (§ 22.1-289.010 et seq.) of Title 22.1 of the Code of Virginia.
D. The sworn statement or affirmation is a written document in which a person must disclose any criminal conviction and any pending criminal charges within or outside Virginia.
1. For the purposes of this chapter, conviction includes any juvenile conviction or determination of delinquency if the offense involved would be a felony if committed by an adult within or outside Virginia.
2. The person must also disclose any instance of being the subject of a founded complaint of child abuse or neglect within or outside Virginia.
3. The person must use either the model form prepared by the department or use a self-created form that includes all of the information that appears on the model form.
The department provides the model sworn statement or affirmation form on its website. Requesters are permitted to submit copies of the form. The person who signs the sworn statement or affirmation affirms the truth of the statement.
E. The criminal history record check is the process of the Department of State Police to generate a criminal record report on a person. The report must be either the criminal record clearance or the criminal history record. The criminal record clearance shows whether the person is guilty of:
1. A barrier crime, as defined in § 22.1-289.034 of the Code of Virginia; and/or
2. Any other felony not included in the definition of barrier crime unless five years have elapsed since the conviction.
The criminal history record report shows all convictions.
F. The person must use the form and process of the Central Criminal Records Exchange (CCRE) of the Department of State Police for this check. The Department of State Police provides original criminal history record check forms to facilities upon receipt of request. The Department of State Police also provides website access to this form for facilities that are noncriminal justice inquiry interface users. The CCRE verifies criminal history record reports.
G. The national criminal background check is the process of obtaining criminal history record information from the Federal Bureau of Investigation through the Central Criminal Records Exchange.
1. The person must submit to fingerprinting and provide personal descriptive information.
2. The person must use the process of the Central Criminal Records Exchange to request and receive a national criminal background check.
H. The search of the central registry is a check to determine if the person has ever been the subject of a founded complaint of child abuse or neglect in Virginia.
I. The person must use the form and process of the Department of Social Services' Office of Background Investigations (OBI). The Department of Social Services provides the central registry request form on its website. Requesters are permitted to submit copies of this form. OBI verifies child protective services central registry check findings.
The department and registering and approval agencies provide copies of all forms in application packets.
Statutory Authority: §§ 22.1-16 and 22.1-289.046 of the Code of Virginia.
