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

Current through Register Vol. 40, No. 24, July 15, 2024
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.