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DATE: June 7, 2024
TO: Licensed Child Day Programs, Licensed Short-Term Child Day Centers,
Licensed Family Day Homes, Licensed Family Day Systems, Religiously
Exempt Child Day Centers, Certified Preschools, Center-Based and Home-Based Programs Participating in the Child Care Subsidy Program,
Voluntarily Registered Family Day Homes, and Family Day Homes
Approved by a Family Day System
FROM: Jeffrey Williams, Assistant Superintendent - Child Care Health and Safety,
Virginia Department of Education
SUBJECT: Background Check Requirements, Information, and Updates
The purpose of this memo is to provide child day programs with important information and
updates pertaining to background check requirements, and updates to the Virginia Department of Education’s (VDOE) procedures for determining compliance with background check requirements in the Code of Virginia.
Provisional Hire, Effective July 1, 2024
The 2024 General Assembly passed legislation that allows employees at child day programs to
begin working after receiving qualifying results on a fingerprint-based background check
through the Central Criminal Records Exchange or the Federal Bureau of Investigation if all
other background check components have been requested. This legislation provides relief amid a longstanding staffing crisis faced by many child day programs in the Commonwealth since 2020.
House Bill (HB) 1277 amends and reenacts § 22.1-289.035 of the Code of Virginia. This
legislation allows an applicant for employment or volunteering to be provisionally hired at a
child day center, family day home, or family day system, provided that (a) the applicant has
received qualifying results on a fingerprint-based background check through the Central
Criminal Records Exchange or the Federal Bureau of Investigation and (b) the applicant is
supervised at all times by a person who received a qualifying result on a background check
conducted in accordance with subsection B of § 22.1-289.035 within the past five years.
This change allows prospective employees and volunteers to be provisionally hired upon receipt of a satisfactory fingerprint check signified by written documentation from the Office of Background Investigations stating that the individual is eligible for hire. Provisionally hired
employees and volunteers must be in the line of sight of at least one other staff member who has a complete and satisfactory background check and must not be left alone with children until all components of the background checks required in § 22.1-289.035 of the Code of Virginia are complete.
New applicants for employment and volunteering hired on or after July 1, 2024, may be
provisionally hired if the applicant has received qualifying results on a fingerprint-based
background check through the Central Criminal Records Exchange or the Federal Bureau of
Investigation. Current employees must continue to meet the requirements set out in § 22.1-
289.035 of the Code. Previous background check requirements apply to all applicants and
volunteers hired prior to July 1, 2024.
Background Check Requirements and Compliance Determination Changes
Effective July 1, 2024, all child day programs must comply with the requirements of § 22.1-
289.035 of the Code of Virginia. There will no longer be a 30-day grace period for Virginia
Child Abuse and Neglect Search results or the Out-of-State Child Abuse and Neglect
Search requests.
The Code of Virginia, § 22.1-289.035 A, requires that the following background check
components be completed for all applicants for employment, employees, applicants to serve as volunteers, and volunteers prior to employment or beginning to serve as a volunteer and every five years thereafter:
• Sworn Statement or Affirmation
• National Fingerprint Check
• Virginia Child Abuse and Neglect Central Registry
• Out-of-State Criminal Record Search
• Out-of-State Offender Registry Search
• Out-of-State Child Abuse and Neglect Search
The current regulation, Background Checks for Child Day Programs and Family Day Systems
has not been updated to include fingerprint criminal record checks and out of state background checks. It allows a search of the Virginia Central Registry to be requested within seven days of hire or beginning volunteer service as long as the results are received within 30 days of hire or beginning service. VDOE has previously required that out-of-state child abuse and neglect checks also be requested within 30 days of employment. These former requirements are not consistent with the Code of Virginia or federal requirements for background checks. Therefore, effective July 1, 2024, there will no longer be a 30-day grace period for Virginia Child Abuse and Neglect Search results or the Out-of-State Child Abuse and Neglect Search requests. Instead, these requests must be submitted prior to the date of employment.
All background check components must either be requested or completed pursuant to § 22.1-289.035 as follows prior to employment.
Background
Check
Component
|
Current
Requirement
|
Updated
Procedure/Compliance
Requirement Effective July
1, 2024
|
Compliance
Determination
|
| |
|
|
|
Sworn Statement
or Affirmation |
Prior to employment |
Must be completed prior to employment. |
Documentation completed
by the prospective
employee or volunteer
prior to date of
employment or
volunteering on file. |
National Fingerprint
Check |
Results prior to
employment |
Must be completed and
returned prior to employment. Employee or Volunteer may be provisionally hired with
completed and satisfactory fingerprint check. |
Documentation of
eligibility letter prior to date of employment on file. |
VA Child Abuse
Central Registry |
Results within 30
days of employment |
Must be requested prior to employment. Employee or
Volunteer may be
provisionally hired with
completed and satisfactory
fingerprint check. |
Documentation of request made prior to date of employment. |
Out-of-State
Criminal Record
Search |
Results prior to
employment |
Must be requested prior to employment. Employee or Volunteer may be provisionally hired with completed and satisfactory
fingerprint check. |
Documentation of request made prior to date of employment. |
| Out of State Sex-Offender Registry Search |
Results prior to
employment as
part of the
fingerprint check |
Must be requested prior to employment. Providers may use the National Sex Offender
website or contact the state directly for out-of-state sex offender registry search requests. Employee or Volunteer may be provisionally hired with completed and satisfactory
fingerprint check. |
Documentation of request made prior to date of
employment. |
Out of State
Child Abuse and
Neglect Search |
Requested within
30 days of
employment |
Must be requested prior to employment. Employee or Volunteer may be provisionally hired with completed and satisfactory
fingerprint check. |
Documentation of request made prior to date of
employment. |
The Code of Virginia currently allows for portability of background checks if certain criteria are met. Effective July 1, 2024, §22.1-289.035 of the Code will be amended to allow for provisional hire.
Reminders and Additional Information
The following information contains important information regarding VDOE payment for
fingerprint checks, procedures for out-of-state checks, and general clarification of requirements for background checks.
• VDOE to cover the cost for fingerprint checks. The Virginia Department of Education
will continue to cover the cost of fingerprint checks for all providers required to have the
check pursuant to §§ 22.1-289.035 and 22.1-289.036 of the Code through June 30, 2025.
Initial and repeat checks will also continue to be covered during this time.
• Background check portability. Background check portability is limited to individuals
eligible for portability. The portability eligibility requirements are as follows:
o The individual must be a prospective employee or volunteer in a Child Day
Center, Family Day Home, Religiously Exempt Child Day Center, Certified
Preschool, Voluntarily Registered Family Day Home, Family Day System
Approved Home, or subsidy provider. Portability is not available to applicants,
agents and household members required to obtain background checks pursuant to
§ 22.1-289.036.
o The individual must have fingerprints through Fieldprint and/or a Virginia Central
Registry search completed within the last five years.
o The results of the fingerprint check completed within the last five years must
indicate that the individual was not convicted of any barrier crime as defined in §
19.2-392.02 and was not the subject of a founded complaint of child abuse or
neglect within or outside the commonwealth.
o The individual must currently be (or within the previous 180 days been) employed
by or a volunteer at a child day enter, family day home, family day system, or
child day program described in subsection A of § 22.1-289.035.
• Out-of-State Background Checks. With the summer months approaching, the following
clarification is offered for programs that hire seasonal staff, military personnel or college
students who have lived in another state but have not changed their legal address:
o If a seasonal staff remains employed by the facility and the facility maintains the
background check record for the staff member, the background check remains
valid for 5 years and a new check must be completed every 5 years. If the staff
becomes inactive or is not employed by the facility for 12 months or less, the
facility may use the background checks previously completed if the background
checks were completed within the last 5 years. If staff returns after more than 12
months, the staff is considered a ‘new hire’ and portability for the staff member
must be requested or new background checks must be completed.
o The Code of Virginia, in §§ 22.1-289.035 B4 and 22.1-289.036 B4
requires that “any” individual required to undergo a background check authorizes
the program to obtain a copy of the results of a criminal history record
information check, a sex offender registry check, and a search of the child abuse
and neglect registry or equivalent registry from any state in which the individual
has “resided” in the preceding five years. VDOE defines the term “lived in” to
mean to reside in a place for an extended or permanent period of time. The term
“resided” or lived in any other state is not limited to only a legal residence.
Please refer to the Child Care VA website ‘Background Checks’ for information and
comprehensive instructions for completing background check components and the document
‘Instructions for Completing Background Checks’, which will both soon be updated to reflect the changes going into effect on July 1st. Please review updates for child care centers and family day homes in the Virginia Department of Education Readiness Connections. Sign up here.
Please send questions to childcarelicensing@doe.virginia.gov.
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