| 1 | 1 | | 2025 SESSION |
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| 2 | 2 | | |
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| 3 | 3 | | INTRODUCED |
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| 4 | 4 | | |
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| 5 | 5 | | 25102776D |
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| 6 | 6 | | |
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| 7 | 7 | | HOUSE BILL NO. 1714 |
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| 8 | 8 | | |
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| 9 | 9 | | Offered January 8, 2025 |
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| 10 | 10 | | |
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| 11 | 11 | | Prefiled January 4, 2025 |
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| 12 | 12 | | |
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| 13 | 13 | | A BILL to amend and reenact 17.1-805, 18.2-57, 18.2-160.2, 37.2-416.1, and 37.2-506.1 of the Code of Virginia, relating to assault and battery; serious bodily injury; penalty. |
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| 14 | 14 | | |
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| 15 | 15 | | |
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| 16 | 16 | | |
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| 17 | 17 | | PatronWatts |
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| 18 | 18 | | |
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| 19 | 19 | | |
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| 20 | 20 | | |
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| 21 | 21 | | Committee Referral Pending |
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| 22 | 22 | | |
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| 23 | 23 | | |
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| 24 | 24 | | |
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| 25 | 25 | | Be it enacted by the General Assembly of Virginia: |
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| 26 | 26 | | |
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| 27 | 27 | | 1. That 17.1-805, 18.2-57, 18.2-160.2, 37.2-416.1, and 37.2-506.1 of the Code of Virginia are amended and reenacted as follows: |
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| 28 | 28 | | |
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| 29 | 29 | | 17.1-805. Adoption of initial discretionary sentencing guideline midpoints. |
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| 30 | 30 | | |
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| 31 | 31 | | A. The Commission shall adopt an initial set of discretionary felony sentencing guidelines which shall become effective on January 1, 1995. The initial recommended sentencing range for each felony offense shall be determined first, by computing the actual time-served distribution for similarly situated offenders, in terms of their conviction offense and prior criminal history, released from incarceration during the base period of calendar years 1988 through 1992, increased by 13.4 percent, and second, by eliminating from this range the upper and lower quartiles. The midpoint of each initial recommended sentencing range shall be the median time served for the middle two quartiles and subject to the following additional enhancements: |
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| 32 | 32 | | |
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| 33 | 33 | | 1. The midpoint of the initial recommended sentencing range for first degree murder, second degree murder, rape in violation of 18.2-61, forcible sodomy, object sexual penetration, and aggravated sexual battery shall be further increased by (i) 125 percent in cases in which the defendant has no previous conviction of a violent felony offense; (ii) 300 percent in cases in which the defendant has previously been convicted of a violent felony offense punishable by a maximum punishment of less than 40 years; or (iii) 500 percent in cases in which the defendant has previously been convicted of a violent felony offense punishable by a maximum punishment of 40 years or more, except that the recommended sentence for a defendant convicted of first degree murder who has previously been convicted of a violent felony offense punishable by a maximum term of imprisonment of 40 years or more shall be imprisonment for life; |
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| 34 | 34 | | |
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| 35 | 35 | | 2. The midpoint of the initial recommended sentencing range for voluntary manslaughter, robbery, aggravated malicious wounding, malicious wounding, and any burglary of a dwelling house or statutory burglary of a dwelling house or any burglary committed while armed with a deadly weapon or any statutory burglary committed while armed with a deadly weapon shall be further increased by (i) 100 percent in cases in which the defendant has no previous conviction of a violent felony offense, (ii) 300 percent in cases in which the defendant has previously been convicted of a violent felony offense punishable by a maximum term of imprisonment of less than 40 years, or (iii) 500 percent in cases in which the defendant has previously been convicted of a violent felony offense punishable by a maximum term of imprisonment of 40 years or more; |
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| 36 | 36 | | |
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| 37 | 37 | | 3. The midpoint of the initial recommended sentencing range for manufacturing, selling, giving, or distributing, or possessing with the intent to manufacture, sell, give, or distribute a Schedule I or II controlled substance, shall be increased by (i) 200 percent in cases in which the defendant has previously been convicted of a violent felony offense punishable by a maximum punishment of less than 40 years or (ii) 400 percent in cases in which the defendant has previously been convicted of a violent felony offense punishable by a maximum term of imprisonment of 40 years or more; and |
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| 38 | 38 | | |
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| 39 | 39 | | 4. The midpoint of the initial recommended sentencing range for felony offenses not specified in subdivision 1, 2, or 3 shall be increased by 100 percent in cases in which the defendant has previously been convicted of a violent felony offense punishable by a maximum punishment of less than 40 years and by 300 percent in cases in which the defendant has previously been convicted of a violent felony offense punishable by a maximum term of imprisonment of 40 years or more. |
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| 40 | 40 | | |
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| 41 | 41 | | B. For purposes of this chapter, previous convictions shall include prior adult convictions and juvenile convictions and adjudications of delinquency based on an offense which would have been at the time of conviction a felony if committed by an adult under the laws of any state, the District of Columbia, or the United States or its territories. |
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| 42 | 42 | | |
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| 43 | 43 | | C. For purposes of this chapter, violent felony offenses shall include any felony violation of 16.1-253.2; solicitation to commit murder under 18.2-29; any violation of 18.2-31, 18.2-32, 18.2-32.1, 18.2-32.2, 18.2-33, or 18.2-35; any violation of subsection B of 18.2-36.1; any violation of 18.2-40 or 18.2-41; any violation of clause (c)(i) or (ii) of subsection B of 18.2-46.3; any violation of 18.2-46.5, 18.2-46.6, or 18.2-46.7; any Class 5 felony violation of 18.2-47; any felony violation of 18.2-48, 18.2-48.1, or 18.2-49; any violation of 18.2-51, 18.2-51.1, 18.2-51.2, 18.2-51.3, 18.2-51.4, 18.2-51.6, 18.2-52, 18.2-52.1, 18.2-53, 18.2-53.1, 18.2-54.1, 18.2-54.2, or 18.2-55; any violation of subsection B or C of 18.2-57; any felony violation of 18.2-57.2; any violation of 18.2-58 or 18.2-58.1; any felony violation of 18.2-60.1, 18.2-60.3, or 18.2-60.4; any violation of 18.2-61, 18.2-64.1, 18.2-67.1, 18.2-67.2, former 18.2-67.2:1, 18.2-67.3, 18.2-67.5, or 18.2-67.5:1 involving a third conviction of either sexual battery in violation of 18.2-67.4 or attempted sexual battery in violation of subsection C of 18.2-67.5; any Class 4 felony violation of 18.2-63; any violation of subsection A of 18.2-67.4:1; any violation of subsection A of 18.2-77; any Class 3 felony violation of 18.2-79; any Class 3 felony violation of 18.2-80; any violation of 18.2-85, 18.2-89, 18.2-90, 18.2-91, 18.2-92, or 18.2-93; any felony violation of 18.2-152.7; any Class 4 felony violation of 18.2-153; any Class 4 felony violation of 18.2-154; any Class 4 felony violation of 18.2-155; any felony violation of 18.2-162; any violation of 18.2-279 involving an occupied dwelling; any felony violation of subsection A or B of 18.2-280; any violation of 18.2-281; any felony violation of subsection A of 18.2-282; any felony violation of 18.2-282.1; any violation of 18.2-286.1, 18.2-287.2, 18.2-289, or 18.2-290; any violation of subsection A of 18.2-300; any felony violation of subsection C of 18.2-308.1 or 18.2-308.2; any violation of 18.2-308.2:1 or subsection M or N of 18.2-308.2:2; any violation of 18.2-308.3 or 18.2-312; any former felony violation of 18.2-346; any felony violation of 18.2-346.01, 18.2-348, or 18.2-349; any violation of 18.2-355, 18.2-356, 18.2-357, or 18.2-357.1; any violation of former 18.2-358; any violation of subsection B of 18.2-361; any violation of subsection B of 18.2-366; any violation of 18.2-368, 18.2-370, or 18.2-370.1; any violation of subsection A of 18.2-371.1; any felony violation of 18.2-369 resulting in serious bodily injury or disease; any violation of 18.2-374.1; any felony violation of 18.2-374.1:1; any violation of 18.2-374.3 or 18.2-374.4; any second or subsequent offense under 18.2-379 and 18.2-381; any felony violation of 18.2-405 or 18.2-406; any violation of 18.2-408, 18.2-413, 18.2-414, 18.2-423, 18.2-423.01, 18.2-423.1, 18.2-423.2, or 18.2-433.2; any felony violation of 18.2-460, 18.2-474.1, or 18.2-477.1; any violation of 18.2-477, 18.2-478, 18.2-480, 18.2-481, or 18.2-485; any violation of 37.2-917; any violation of 52-48; any violation of 53.1-203; any conspiracy or attempt to commit any offense specified in this subsection, or any substantially similar offense under the laws of any state, the District of Columbia, or the United States or its territories. |
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| 44 | 44 | | |
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| 45 | 45 | | 18.2-57. Assault and battery; penalty. |
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| 46 | 46 | | |
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| 47 | 47 | | A. Any person who commits a simple assault or assault and battery is guilty of a Class 1 misdemeanor, and if the person intentionally selects the person against whom a simple assault is committed because of his race, religious conviction, gender, disability, gender identity, sexual orientation, color, or ethnic or national origin, the penalty upon conviction shall include a term of confinement of at least six months. |
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| 48 | 48 | | |
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| 49 | 49 | | B. However, if a person intentionally selects the person against whom an assault and battery resulting in bodily injury is committed because of his race, religious conviction, gender, disability, gender identity, sexual orientation, color, or ethnic or national origin, the person is guilty of a Class 6 felony, and the penalty upon conviction shall include a term of confinement of at least six months. |
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| 50 | 50 | | |
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| 51 | 51 | | C. Any person who commits an assault and battery resulting in serious bodily injury, as defined in 18.2-51.4, is guilty of a Class 6 felony. |
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| 52 | 52 | | |
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| 53 | 53 | | D. In addition, if any person commits an assault or an assault and battery against another knowing or having reason to know that such other person is a judge, a magistrate, a law-enforcement officer as defined in subsection G H, a correctional officer as defined in 53.1-1, a person directly involved in the care, treatment, or supervision of inmates in the custody of the Department of Corrections or an employee of a local or regional correctional facility directly involved in the care, treatment, or supervision of inmates in the custody of the facility, a person directly involved in the care, treatment, or supervision of persons in the custody of or under the supervision of the Department of Juvenile Justice, an employee or other individual who provides control, care, or treatment of sexually violent predators committed to the custody of the Department of Behavioral Health and Developmental Services, a firefighter as defined in 65.2-102, or a volunteer firefighter or any emergency medical services personnel member who is employed by or is a volunteer of an emergency medical services agency or as a member of a bona fide volunteer fire department or volunteer emergency medical services agency, regardless of whether a resolution has been adopted by the governing body of a political subdivision recognizing such firefighters or emergency medical services personnel as employees, engaged in the performance of his public duties anywhere in the Commonwealth, such person is guilty of a Class 6 felony, and, upon conviction, the sentence of such person shall include a mandatory minimum term of confinement of six months. |
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| 54 | 54 | | |
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| 55 | 55 | | Nothing in this subsection shall be construed to affect the right of any person charged with a violation of this section from asserting and presenting evidence in support of any defenses to the charge that may be available under common law. |
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| 56 | 56 | | |
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| 57 | 57 | | D. E. In addition, if any person commits a battery against another knowing or having reason to know that such other person is a full-time or part-time employee of any public or private elementary or secondary school and is engaged in the performance of his duties as such, he is guilty of a Class 1 misdemeanor and the sentence of such person upon conviction shall include a sentence of 15 days in jail, two days of which shall be a mandatory minimum term of confinement. However, if the offense is committed by use of a firearm or other weapon prohibited on school property pursuant to 18.2-308.1, the person shall serve a mandatory minimum sentence of confinement of six months. |
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| 58 | 58 | | |
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| 59 | 59 | | E. F. In addition, any person who commits a battery against another knowing or having reason to know that such individual is a health care provider as defined in 8.01-581.1 who is engaged in the performance of his duties in a hospital or in an emergency room on the premises of any clinic or other facility rendering emergency medical care is guilty of a Class 1 misdemeanor. The sentence of such person, upon conviction, shall include a term of confinement of 15 days in jail, two days of which shall be a mandatory minimum term of confinement. |
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| 60 | 60 | | |
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| 61 | 61 | | F. G. In addition, any person who commits an assault or an assault and battery against another knowing or having reason to know that such individual is an operator of a vehicle operated by a public transportation service as defined in 18.2-160.2 who is engaged in the performance of his duties is guilty of a Class 1 misdemeanor. The sentence of such person, upon conviction, shall also prohibit such person from entering or riding in any vehicle operated by the public transportation service that employed such operator for a period of not less than six months as a term and condition of such sentence. |
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| 62 | 62 | | |
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| 63 | 63 | | G. H. As used in this section: |
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| 64 | 64 | | |
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| 65 | 65 | | "Disability" means a physical or mental impairment that substantially limits one or more of a person's major life activities. |
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| 66 | 66 | | |
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| 67 | 67 | | "Hospital" means a public or private institution licensed pursuant to Chapter 5 ( 32.1-123 et seq.) of Title 32.1 or Article 2 ( 37.2-403 et seq.) of Chapter 4 of Title 37.2. |
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| 68 | 68 | | |
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| 69 | 69 | | "Judge" means any justice or judge of a court of record of the Commonwealth including a judge designated under 17.1-105, a judge under temporary recall under 17.1-106, or a judge pro tempore under 17.1-109, any member of the State Corporation Commission, or of the Virginia Workers' Compensation Commission, and any judge of a district court of the Commonwealth or any substitute judge of such district court. |
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| 70 | 70 | | |
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| 71 | 71 | | "Law-enforcement officer" means any full-time or part-time employee of a police department or sheriff's office that is part of or administered by the Commonwealth or any political subdivision thereof who is responsible for the prevention or detection of crime and the enforcement of the penal, traffic or highway laws of the Commonwealth, any conservation officer of the Department of Conservation and Recreation commissioned pursuant to 10.1-115, any special agent of the Virginia Alcoholic Beverage Control Authority, conservation police officers appointed pursuant to 29.1-200, full-time sworn members of the enforcement division of the Department of Motor Vehicles appointed pursuant to 46.2-217, and any employee with internal investigations authority designated by the Department of Corrections pursuant to subdivision 11 of 53.1-10, and such officer also includes jail officers in local and regional correctional facilities, all deputy sheriffs, whether assigned to law-enforcement duties, court services or local jail responsibilities, auxiliary police officers appointed or provided for pursuant to 15.2-1731 and 15.2-1733, auxiliary deputy sheriffs appointed pursuant to 15.2-1603, police officers of the Metropolitan Washington Airports Authority pursuant to 5.1-158, and fire marshals appointed pursuant to 27-30 when such fire marshals have police powers as set out in 27-34.2 and 27-34.2:1. |
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| 72 | 72 | | |
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| 73 | 73 | | "School security officer" means the same as that term is defined in 9.1-101. |
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| 74 | 74 | | |
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| 75 | 75 | | H. I. "Simple assault" or "assault and battery" shall not be construed to include the use of, by any school security officer or full-time or part-time employee of any public or private elementary or secondary school while acting in the course and scope of his official capacity, any of the following: (i) incidental, minor or reasonable physical contact or other actions designed to maintain order and control; (ii) reasonable and necessary force to quell a disturbance or remove a student from the scene of a disturbance that threatens physical injury to persons or damage to property; (iii) reasonable and necessary force to prevent a student from inflicting physical harm on himself; (iv) reasonable and necessary force for self-defense or the defense of others; or (v) reasonable and necessary force to obtain possession of weapons or other dangerous objects or controlled substances or associated paraphernalia that are upon the person of the student or within his control. |
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| 76 | 76 | | |
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| 77 | 77 | | In determining whether a person was acting within the exceptions provided in this subsection, due deference shall be given to reasonable judgments that were made by a school security officer or full-time or part-time employee of any public or private elementary or secondary school at the time of the event. |
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| 78 | 78 | | |
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| 79 | 79 | | 18.2-160.2. Trespassing on public transportation; penalty. |
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| 80 | 80 | | |
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| 81 | 81 | | A. Any person who enters or remains upon or within a vehicle operated by a public transportation service without the permission of, or after having been forbidden to do so by, the owner, lessee, or authorized operator thereof is guilty of a Class 4 misdemeanor. |
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| 82 | 82 | | |
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| 83 | 83 | | B. Any person who enters or rides in a vehicle operated by a public transportation service who has been prohibited to do so pursuant to subsection F G of 18.2-57 is guilty of a Class 1 misdemeanor. |
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| 84 | 84 | | |
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| 85 | 85 | | C. "Public transportation service" means passenger transportation service provided by bus, rail, or other surface conveyance that provides transportation to the general public on a regular and continuing basis. |
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| 86 | 86 | | |
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| 87 | 87 | | 37.2-416.1. Background checks required; adult substance abuse and mental health services. |
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| 88 | 88 | | |
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| 89 | 89 | | A. As used in this section: |
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| 90 | 90 | | |
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| 91 | 91 | | "Direct care position" means any position that includes responsibility for (i) treatment, case management, health, safety, development, or well-being of an adult receiving substance abuse or mental health services or (ii) immediately supervising a person in a position described in this definition. |
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| 92 | 92 | | |
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| 93 | 93 | | "Hire for compensated employment" does not include (i) a promotion from one adult substance abuse or adult mental health treatment position to another such position within the same licensee licensed pursuant to this article or (ii) new employment in an adult substance abuse or adult mental health treatment position in another office or program licensed 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 the application date for employment. "Hire for compensated employment" includes (a) a promotion or transfer from an adult substance abuse treatment position to any mental health or developmental services direct care position within the same licensee licensed pursuant to this article or (b) new employment in any mental health or developmental services direct care position in another office or program of the same licensee licensed pursuant to this article for which the person has previously worked in an adult substance abuse treatment position. |
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| 94 | 94 | | |
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| 95 | 95 | | "Peer recovery specialist" means any person who has completed a peer recovery specialist training course approved by the Department of Behavioral Health and Developmental Services. |
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| 96 | 96 | | |
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| 97 | 97 | | "Provider" means a provider who is licensed pursuant to this article and who provides substance abuse or mental health services to adults. |
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| 98 | 98 | | |
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| 99 | 99 | | B. Every provider shall require (i) any applicant who accepts employment in any direct care position and (ii) any person under contract with the provider to serve in a direct care position to submit to fingerprinting and provide personal descriptive information to be forwarded through the Central Criminal Records Exchange to the Federal Bureau of Investigation (FBI) for the purpose of obtaining national criminal history record information regarding the applicant. Except as otherwise provided in subsection C, D, E, or G, no provider shall: |
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| 100 | 100 | | |
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| 101 | 101 | | 1. Hire for compensated employment any person who has been convicted of (i) any offense set forth in clause (i), (ii), or (iii) of the definition of barrier crime in 19.2-392.02 or (ii) any offense set forth in clause (iv) of the definition of barrier crime in 19.2-392.02 (a) in the five years prior to the application date for employment or (b) if such person continues on probation or parole or has failed to pay required court costs for such offense set forth in clause (iv) of the definition of barrier crime in 19.2-392.02; or |
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| 102 | 102 | | |
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| 103 | 103 | | 2. Allow any person under contract with the provider to serve in a direct care position who has been convicted of (i) any offense set forth in clause (i), (ii), or (iii) of the definition of barrier crime in 19.2-392.02 or (ii) any offense set forth in clause (iv) of the definition of barrier crime in 19.2-392.02 (a) in the five years prior to the application date for employment or (b) if such person continues on probation or parole or has failed to pay required court costs for such offense set forth in clause (iv) of the definition of barrier crime in 19.2-392.02. |
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| 104 | 104 | | |
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| 105 | 105 | | The Central Criminal Records Exchange, upon receipt of an applicant's record or notification that no record exists, shall submit a report to the requesting authorized officer or director of a provider. If any applicant is denied employment because of information appearing on the criminal history record and the applicant disputes the information upon which the denial was based, the Central Criminal Records Exchange shall, upon written request, furnish to the applicant the procedures for obtaining a copy of the criminal history record from the FBI. The information provided to the authorized officer or director of a provider shall not be disseminated except as provided in this section. |
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| 106 | 106 | | |
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| 107 | 107 | | C. Notwithstanding the provisions of subsection B, a provider may hire for compensated employment or permit any person under contract with the provider to serve in a direct care position or permit any person employed by a temporary agency that has entered into a contract with the provider to provide direct care services on behalf of the provider at an adult substance abuse or mental health treatment program a person who was convicted of any misdemeanor violation of 18.2-57 or any violation of 18.2-248, 18.2-250, or 18.2-258.1, except an offense pursuant to subsection H1 or H2 of 18.2-248, provided that such conviction occurred more than four years prior to the application date for employment. |
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| 108 | 108 | | |
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| 109 | 109 | | D. Notwithstanding the provisions of subsection B, a provider may hire for compensated employment or permit any person under contract with the provider to serve in a direct care position or permit any person employed by a temporary agency that has entered into a contract with the provider to provide direct care services on behalf of the provider at adult substance abuse or adult mental health treatment programs a person who was convicted of any violation of 18.2-51.3; any misdemeanor violation of 18.2-56 or 18.2-56.1; any first offense misdemeanor violation of 18.2-57.2; any violation of 18.2-60, 18.2-89, 18.2-92, or 18.2-94; any misdemeanor violation of 18.2-282, 18.2-346, or 18.2-346.01; any offense set forth in clause (iii) of the definition of barrier crime in 19.2-392.02, except an offense pursuant to subsections H1 and H2 of 18.2-248; or any substantially similar offense under the laws of another jurisdiction, if the hiring provider determines, based upon a screening assessment, that the criminal behavior was substantially related to the applicant's substance abuse or mental illness and that the person has been successfully rehabilitated and is not a risk to individuals receiving services based on his criminal history background and his substance abuse or mental illness history. In addition, where the employment at an adult substance abuse treatment program is as a peer recovery specialist, the provider may hire any person eligible under this subsection or who was convicted of any offense set forth in clause (iv) of the definition of barrier crime in 19.2-392.02 if the hiring provider determines, based upon a screening assessment, that the criminal behavior was substantially related to the person's substance abuse or mental illness and that the person has been successfully rehabilitated and is not a risk to individuals receiving services based on his criminal history background and his substance abuse or mental illness history. |
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| 110 | 110 | | |
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| 111 | 111 | | E. Notwithstanding the provisions of subsection B, a provider may hire for compensated employment or permit any person under contract with the provider to serve in a direct care position or permit any person employed by a temporary agency that has entered into a contract with the provider to provide direct care services on behalf of the provider at adult substance abuse treatment facilities a person who has been convicted of not more than one offense under subsection C D of 18.2-57, or any substantially similar offense under the laws of another jurisdiction, if (i) the person has been granted a simple pardon if the offense was a felony committed in Virginia, or the equivalent if the person was convicted under the laws of another jurisdiction; (ii) more than 10 years have elapsed since the conviction; and (iii) the hiring provider determines, based upon a screening assessment, that the criminal behavior was substantially related to the applicant's substance abuse and that the person has been successfully rehabilitated and is not a risk to individuals receiving services based on his criminal history background and his substance abuse history. |
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| 112 | 112 | | |
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| 113 | 113 | | F. The hiring provider and a screening contractor designated by the Department shall screen applicants who meet the criteria set forth in subsections D and E to assess whether the applicants have been rehabilitated successfully and are not a risk to individuals receiving services based on their criminal history backgrounds and substance abuse or mental illness histories. To be eligible for such screening, the applicant shall have completed all prison or jail terms, shall not be under probation or parole supervision, shall have no pending charges in any locality, shall have paid all fines, restitution, and court costs for any prior convictions, and shall have been free of parole or probation for at least five years for all convictions. In addition to any supplementary information the provider or screening contractor may require or the applicant may wish to present, the applicant shall provide to the screening contractor a statement from his most recent probation or parole officer, if any, outlining his period of supervision and a copy of any pre-sentencing or post-sentencing report in connection with the felony conviction. The cost of this screening shall be paid by the applicant, unless the licensed provider decides to pay the cost. |
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| 114 | 114 | | |
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| 115 | 115 | | G. Notwithstanding the provisions of subsection B, a provider may (i) hire for compensated employment, (ii) approve as a sponsored residential service provider, (iii) permit to enter into a shared living arrangement, or (iv) permit any person under contract with the provider to serve in a direct care position on behalf of the provider or permit any person employed by a temporary agency that has entered into a contract with the provider to provide direct care services on behalf of the provider persons who have been convicted of not more than one misdemeanor offense under 18.2-57.2, or any substantially similar offense under the laws of another jurisdiction, if 10 years have elapsed following the conviction, unless the person committed the offense while employed in a direct care position. A provider may also approve a person as a sponsored residential service provider if (a) any adult living in the home of an applicant or (b) any person employed by the applicant to provide services in the home in which sponsored residential services are provided has been convicted of not more than one misdemeanor offense under 18.2-57.2, or any substantially similar offense under the laws of another jurisdiction, if 10 years have elapsed following the conviction, unless the person committed the offense while employed in a direct care position. |
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| 116 | 116 | | |
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| 117 | 117 | | H. Every provider shall require, as a condition of employment, approval as a sponsored residential service provider, permission to enter into a shared living arrangement with a person receiving medical assistance services pursuant to a waiver, or permission for any person under contract with the provider to serve in a direct care position, written consent and personal information necessary to obtain a search of the registry of founded complaints of child abuse and neglect that is maintained by the Department of Social Services pursuant to 63.2-1515. |
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| 118 | 118 | | |
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| 119 | 119 | | I. The cost of obtaining the criminal history record and search of the child abuse and neglect registry record shall be borne by the applicant, unless the provider decides to pay the cost. |
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| 120 | 120 | | |
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| 121 | 121 | | J. A person who complies in good faith with the provisions of this section shall not be liable for any civil damages for any act or omission in the performance of duties under this section unless the act or omission was the result of gross negligence or willful misconduct. |
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| 122 | 122 | | |
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| 123 | 123 | | K. Notwithstanding any other provision of law, a provider that provides services to individuals receiving services under the state plan for medical assistance services or any waiver thereto may disclose to the Department of Medical Assistance Services (i) whether a criminal history background check has been completed for a person described in subsection B for whom a criminal history background check is required and (ii) whether the person described in subsection B is eligible for employment, to provide sponsored residential services, to provide services in the home of a sponsored residential service provider, or to enter into a shared living arrangement with a person receiving medical assistance services pursuant to a waiver. |
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| 124 | 124 | | |
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| 125 | 125 | | L. Any person employed by a temporary agency that has entered into a contract with a provider and who will serve in a direct care position on behalf of such provider shall undergo a background check that shall include: |
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| 126 | 126 | | |
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| 127 | 127 | | 1. A criminal history records check through the Central Criminal Records Exchange pursuant to 19.2-389; and |
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| 128 | 128 | | |
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| 129 | 129 | | 2. A search of the central registry maintained pursuant to 63.2-1515 for any founded complaint of child abuse and neglect. |
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| 130 | 130 | | |
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| 131 | 131 | | Except as otherwise provided in subsection C, D, E, or G, no provider shall permit any person employed by a temporary agency that has entered into a contract with the provider to provide direct care services on behalf of the provider if that person has been convicted of (i) any offense set forth in clause (i), (ii), or (iii) of the definition of barrier crime in 19.2-392.02 or (ii) any offense set forth in clause (iv) of the definition of barrier crime in 19.2-392.02 (a) in the five years prior to the application date for employment or (b) if such person continues on probation or parole or has failed to pay required court costs for such offense set forth in clause (iv) of the definition of barrier crime in 19.2-392.02. |
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| 132 | 132 | | |
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| 133 | 133 | | 37.2-506.1. Background checks required; adult substance abuse and mental health services. |
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| 134 | 134 | | |
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| 135 | 135 | | A. As used in this section: |
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| 136 | 136 | | |
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| 137 | 137 | | "Direct care position" means any position that includes responsibility for (i) treatment, case management, health, safety, development, or well-being of an adult receiving substance abuse or mental health services or (ii) immediately supervising a person in a position described in this definition. |
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| 138 | 138 | | |
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| 139 | 139 | | "Hire for compensated employment" does not include (i) a promotion from one adult substance abuse or adult mental health treatment position to another such position within the same community services board or (ii) new employment in an adult substance abuse or adult mental health treatment position in another office or program of the same community services board if the person employed prior to July 1, 1999, had no convictions in the five years prior to the application date for employment. "Hire for compensated employment" includes (a) a promotion or transfer from an adult substance abuse treatment position to any mental health or developmental services direct care position within the same community services board or (b) new employment in any mental health or developmental services direct care position in another office or program of the same community services board for which the person has previously worked in an adult substance abuse treatment position. |
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| 140 | 140 | | |
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| 141 | 141 | | "Peer recovery specialist" means any person who has completed a peer recovery specialist training course approved by the Department of Behavioral Health and Developmental Services. |
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| 142 | 142 | | |
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| 143 | 143 | | B. Every community services board shall require (i) any applicant who accepts employment in any direct care position with the community services board and (ii) any person under contract to serve in a direct care position on behalf of the community services board to submit to fingerprinting and provide personal descriptive information to be forwarded through the Central Criminal Records Exchange to the Federal Bureau of Investigation (FBI) for the purpose of obtaining national criminal history record information regarding the applicant. Except as otherwise provided in subsection C, D, e, or g, no community services board shall hire for compensated employment, approve as a sponsored residential service provider, permit to enter into a shared living arrangement with a person receiving medical assistance services pursuant to a waiver, or permit any person under contract to serve in a direct care position on behalf of the community services board persons who have been convicted of (a) any offense set forth in clause (i), (ii), or (iii) of the definition of barrier crime in 19.2-392.02 or (b) any offense set forth in clause (iv) of the definition of barrier crime in 19.2-392.02 (1) in the five years prior to the application date for employment, the application date to be a sponsored residential service provider, or entering into a shared living arrangement or (2) if such person continues on probation or parole or has failed to pay required court costs for such offense set forth in clause (iv) of the definition of barrier crime in 19.2-392.02. |
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| 144 | 144 | | |
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| 145 | 145 | | The Central Criminal Records Exchange, upon receipt of an applicant's record or notification that no record exists, shall submit a report to the requesting executive director or personnel director of the community services board. If any applicant is denied employment because of information appearing on his criminal history record and the applicant disputes the information upon which the denial was based, the Central Criminal Records Exchange shall, upon written request, furnish to the applicant the procedures for obtaining a copy of the criminal history record from the FBI. The information provided to the executive director or personnel director of any community services board shall not be disseminated except as provided in this section. |
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| 146 | 146 | | |
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| 147 | 147 | | C. Notwithstanding the provisions of subsection B, the community services board may hire for compensated employment or permit any person under contract to serve in a direct care position on behalf of the community services board or permit any person employed by a temporary agency that has entered into a contract with the community services board to provide direct care services on behalf of the community services board at an adult substance abuse or mental health treatment program a person who was convicted of any misdemeanor violation of 18.2-57 or any violation of 18.2-248, 18.2-250, or 18.2-258.1, except an offense pursuant to subsection H1 or H2 of 18.2-248, provided that such conviction occurred more than four years prior to the application date for employment. |
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| 148 | 148 | | |
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| 149 | 149 | | D. Notwithstanding the provisions of subsection B, the community services board may hire for compensated employment or permit any person under contract to serve in a direct care position on behalf of the community services board or permit any person employed by a temporary agency that has entered into a contract with the community services board to provide direct care services on behalf of the community services board at adult substance abuse or adult mental health treatment programs a person who was convicted of any violation of 18.2-51.3; any misdemeanor violation of 18.2-56, 18.2-56.1, or 18.2-57.2; any violation of 18.2-60, 18.2-89, 18.2-92, or 18.2-94; any misdemeanor violation of 18.2-282, 18.2-346, or 18.2-346.01; any offense set forth in clause (iii) of the definition of barrier crime in 19.2-392.02, except an offense pursuant to subsection H1 or H2 of 18.2-248; or any substantially similar offense under the laws of another jurisdiction, if the hiring community services board determines, based upon a screening assessment, that the criminal behavior was substantially related to the applicant's substance abuse or mental illness and that the person has been successfully rehabilitated and is not a risk to individuals receiving services based on his criminal history background and his substance abuse or mental illness history. In addition, where the employment at an adult substance abuse treatment program is as a peer recovery specialist, the community services board may hire any person eligible under this subsection or who was convicted of any offense set forth in clause (iv) of the definition of barrier crime in 19.2-392.02 if the hiring community services board determines, based upon a screening assessment, that the criminal behavior was substantially related to the person's substance abuse or mental illness and that the person has been successfully rehabilitated and is not a risk to individuals receiving services based on his criminal history background and his substance abuse or mental illness history. |
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| 150 | 150 | | |
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| 151 | 151 | | E. Notwithstanding the provisions of subsection B, the community services board may hire for compensated employment or permit any person under contract to serve in a direct care position on behalf of the community services board or permit any person employed by a temporary agency that has entered into a contract with the community services board to provide direct care services on behalf of the community services board at adult substance abuse treatment programs a person who has been convicted of not more than one offense under subsection C D of 18.2-57, or any substantially similar offense under the laws of another jurisdiction, if (i) the person has been granted a simple pardon if the offense was a felony committed in Virginia, or the equivalent if the person was convicted under the laws of another jurisdiction; (ii) more than 10 years have elapsed since the conviction; and (iii) the hiring community services board determines, based upon a screening assessment, that the criminal behavior was substantially related to the applicant's substance abuse and that the person has been successfully rehabilitated and is not a risk to individuals receiving services based on his criminal history background and his substance abuse history. |
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| 152 | 152 | | |
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| 153 | 153 | | F. The community services board and a screening contractor designated by the Department shall screen applicants who meet the criteria set forth in subsections D and E to assess whether the applicants have been rehabilitated successfully and are not a risk to individuals receiving services based on their criminal history backgrounds and substance abuse or mental illness histories. To be eligible for such screening, the applicant shall have completed all prison or jail terms, shall not be under probation or parole supervision, shall have no pending charges in any locality, shall have paid all fines, restitution, and court costs for any prior convictions, and shall have been free of parole or probation for at least five years for all convictions. In addition to any supplementary information the community services board or screening contractor may require or the applicant may wish to present, the applicant shall provide to the screening contractor a statement from his most recent probation or parole officer, if any, outlining his period of supervision and a copy of any pre-sentencing or post-sentencing report in connection with the felony conviction. The cost of this screening shall be paid by the applicant, unless the board decides to pay the cost. |
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| 154 | 154 | | |
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| 155 | 155 | | G. Notwithstanding the provisions of subsection B, a community services board may (i) hire for compensated employment or (ii) permit any person under contract to serve in a direct care position on behalf of the community services board or permit any person employed by a temporary agency that has entered into a contract with the community services board to provide direct care services on behalf of the community services board persons who have been convicted of not more than one misdemeanor offense under 18.2-57.2, or any substantially similar offense under the laws of another jurisdiction, if 10 years have elapsed following the conviction, unless the person committed the offense while employed in a direct care position. |
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| 156 | 156 | | |
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| 157 | 157 | | H. Community services boards also shall require, as a condition of employment or permission for any person under contract to serve in a direct care position on behalf of the community services board, written consent and personal information necessary to obtain a search of the registry of founded complaints of child abuse and neglect that is maintained by the Department of Social Services pursuant to 63.2-1515. |
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| 158 | 158 | | |
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| 159 | 159 | | I. The cost of obtaining the criminal history record and search of the child abuse and neglect registry record shall be borne by the applicant, unless the community services board decides to pay the cost. |
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| 160 | 160 | | |
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| 161 | 161 | | J. Notwithstanding any other provision of law, a community services board that provides services to individuals receiving services under the state plan for medical assistance services or any waiver thereto may disclose to the Department of Medical Assistance Services (i) whether a criminal history background check has been completed for a person described in subsection B for whom a criminal history background check is required and (ii) whether the person described in subsection B is eligible for employment. |
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| 162 | 162 | | |
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| 163 | 163 | | K. Any person employed by a temporary agency that has entered into a contract with a community services board and who will serve in a direct care position on behalf of such community services board shall undergo a background check that shall include: |
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| 164 | 164 | | |
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| 165 | 165 | | 1. A criminal history records check through the Central Criminal Records Exchange pursuant to 19.2-389; and |
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| 166 | 166 | | |
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| 167 | 167 | | 2. A search of the central registry maintained pursuant to 63.2-1515 for any founded complaint of child abuse and neglect. |
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| 168 | 168 | | |
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| 169 | 169 | | Except as otherwise provided in subsection C, D, E, or G, no community services board shall permit any person employed by a temporary agency that has entered into a contract with the community services board to provide direct care services on behalf of the community services board if that person has been convicted of (i) any offense set forth in clause (i), (ii), or (iii) of the definition of barrier crime in 19.2-392.02 or (ii) any offense set forth in clause (iv) of the definition of barrier crime in 19.2-392.02 (a) in the five years prior to the application date for employment, the application date to be a sponsored residential service provider, or entering into a shared living arrangement or (b) if such person continues on probation or parole or has failed to pay required court costs for such offense set forth in clause (iv) of the definition of barrier crime in 19.2-392.02. |
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| 170 | 170 | | |
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| 171 | 171 | | 2. That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of imprisonment in state adult correctional facilities; therefore, Chapter 2 of the Acts of Assembly of 2024, Special Session I, requires the Virginia Criminal Sentencing Commission to assign a minimum fiscal impact of $50,000. Pursuant to 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of commitment to the custody of the Department of Juvenile Justice. |
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