Chapter 90. Regulation for Background Checks for Assisted Living Facilities and Adult Day Centers
Part I
Introduction
22VAC40-90-10. Definitions.
The following words and terms when used in conjunction with this chapter shall have the following meanings:
"Applicant for licensure" means the entity applying for approval as a licensed assisted living facility. An applicant may be an individual, association, partnership, limited liability company, corporation, or public agency.
"Barrier crimes" means certain crimes that automatically bar individuals convicted of the crime from employment at a licensed assisted living facility or adult day center and that automatically bar licensure of applicants convicted of the crime from assisted living facility licensure, as specified by clause (i) of the definition of "barrier crime" in § 19.2-392.02 of the Code of Virginia and any former felony violation of § 18.2-346 of the Code of Virginia. A licensed assisted living facility or adult day center may hire an applicant or continue to employ a person convicted of one misdemeanor barrier crime not involving abuse or neglect, or any substantially similar offense under the laws of another jurisdiction, if five years have elapsed following the conviction.
"Central Criminal Records Exchange" means the information system containing conviction data of those crimes committed in Virginia, maintained by the Department of State Police, through which the criminal history record request form is processed.
"Criminal history record request" means the Department of State Police form used to authorize the State Police to generate a criminal history record report on an individual.
"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 criminal record clearance provides conviction data only related to barrier crimes; the criminal history record discloses all known conviction data.
"Employee" means compensated personnel working at a facility regardless of role, service, age, function, or duration of employment at the facility. Employee also includes those individuals hired through a contract to provide services for the facility.
"Facility" means an assisted living facility or adult day center subject to licensure by the Department of Social Services.
"Sworn statement or affirmation" means a document to be completed, signed, and submitted for licensure or employment. The document discloses the licensure applicant's or employment applicant's criminal convictions and pending criminal charges that occurred within or outside the Commonwealth. For applicants for licensure as an assisted living facility, the document also discloses whether the applicant has been the subject of a founded complaint of child abuse or neglect within or outside the Commonwealth, as required by §§ 63.2-1720 and 63.2-1721 of the Code of Virginia.
Statutory Authority
§ 63.2-217 of the Code of Virginia.
Historical Notes
Derived from VR615-37-01 § 1.1, eff. July 1, 1989; amended, Virginia Register Volume 8, Issue 17, eff. July 1, 1993; Volume 19, Issue 2, eff. November 6, 2002; Volume 19, Issue 22, eff. September 19, 2003; Volume 21, Issue 18, eff. July 1, 2005; Volume 22, Issue 22, eff. September 1, 2006; Volume 28, Issue 23, eff. August 15, 2012; Volume 34, Issue 2, eff. October 19, 2017; Volume 40, Issue 24, eff. August 14, 2024; Volume 41, Issue 22, eff. August 15, 2025.
22VAC40-90-20. Legal base and applicability.
A. Sections 63.2-1702 and 63.2-1721 of the Code of Virginia require all applicants for licensure as assisted living facilities to undergo background checks consisting of a sworn statement or affirmation and criminal history record check. If the applicant is an individual, the individual must undergo a background check. If the applicant is an association, partnership, limited liability company, corporation, or public agency, the officers and agents of the applicant must undergo background checks.
B. Section 63.2-1720 of the Code of Virginia requires all employees of assisted living facilities and adult day centers, as defined by § 63.2-100 of the Code of Virginia, to obtain a criminal history record report from the Department of State Police.
C. Section 63.2-1720 of the Code of Virginia requires all applicants for employment at assisted living facilities and adult day centers to provide the hiring facility with a sworn statement or affirmation.
D. No volunteer shall be permitted to serve in a licensed assisted living facility or licensed adult day center without the permission or under the supervision of a person who has received a clearance pursuant to § 63.2-1720 of the Code of Virginia.
E. Section 63.2-1720 of the Code of Virginia requires all students of a certified nurse aide program operated by an assisted living facility to be notified of and provided a copy of the provisions of Article 3 (§ 63.2-1719 et seq.) of Chapter 17 of Title 63.2 of the Code of Virginia prior to or upon enrollment in the program.
Statutory Authority
§§ 63.2-1702, 63.2-1720, and 63.2-1721 of the Code of Virginia.
Historical Notes
Derived from VR615-37-01 § 1.2, eff. July 1, 1989; amended, Virginia Register Volume 8, Issue 17, eff. July 1, 1993; Volume 19, Issue 2, eff. November 6, 2002; Volume 21, Issue 18, eff. July 1, 2005; Volume 22, Issue 22, eff. September 1, 2006; Volume 40, Issue 24, eff. August 14, 2024; Volume 41, Issue 22, eff. August 15, 2025.
Part II
The Sworn Statement or Affirmation
22VAC40-90-30. Sworn statement or affirmation.
A. The applicant for licensure shall complete a sworn statement or affirmation upon application for licensure as an assisted living facility.
B. The sworn statement or affirmation shall be completed for all applicants for employment. A model form is available from the department upon request and on the department's website.
C. Any person making a materially false statement on the sworn statement or affirmation shall be guilty of a Class 1 misdemeanor.
D. Further dissemination of the sworn statement or affirmation information is prohibited other than to the Commissioner of the Department of Social Service's representative or a federal or state authority or court as may be required to comply with an express requirement of law for such further dissemination.
Statutory Authority
§§ 63.2-1702, 63.2-1720, and 63.2-1721 of the Code of Virginia.
Historical Notes
Derived from VR615-37-01 § 2.1, eff. July 1, 1989; amended, Virginia Register Volume 8, Issue 17, eff. July 1, 1993; Volume 21, Issue 18, eff. July 1, 2005; Volume 22, Issue 22, eff. September 1, 2006; Volume 41, Issue 22, eff. August 15, 2025.
Part III
The Criminal History Record Report
22VAC40-90-40. General requirements.
A. The applicant for licensure shall submit a criminal history record report upon application for licensure as an assisted living facility.
B. The criminal history record report shall be obtained within 30 days of employment for each employee.
C. Any person required by this chapter to obtain a criminal history record report shall be ineligible for employment if the report contains convictions of the barrier crimes.
D. If a criminal history record is requested, it shall be the responsibility of the licensee to ensure that the employee has not been convicted of any of the barrier crimes.
E. Criminal history record reports shall be kept confidential in a locked file. Reports on employees shall be received and accessible only by the facility administrator, licensee, board president, or their designee.
F. A criminal history record report issued by the State Police shall not be accepted by the facility if the report is dated more than 90 days prior to the date of employment.
G. Any applicant denied licensure as an assisted living facility or employment at an assisted living facility or adult day center because of convictions appearing on the applicant's criminal history record report shall be provided a copy of the report by the licensing authority or the hiring facility.
H. No facility shall continue to employ any person who has a conviction of any of the barrier crimes.
I. No employee shall be permitted to work in a position that involves direct contact with an assisted living resident or an adult day center participant until a criminal history record has been received, unless such person works under the direct supervision of another employee for whom a background check has been completed in accordance with the requirements of this chapter.
Statutory Authority
§ 63.2-217 of the Code of Virginia.
Historical Notes
Derived from VR615-37-01 § 3.1, eff. July 1, 1989; amended, Virginia Register Volume 8, Issue 17, eff. July 1, 1993; Volume 21, Issue 18, eff. July 1, 2005; Volume 22, Issue 22, eff. September 1, 2006; Volume 33, Issue 2, eff. October 19, 2016; Volume 40, Issue 24, eff. August 14, 2024; Volume 41, Issue 22, eff. August 15, 2025.
22VAC40-90-50. Validity of criminal history record reports.
A. Facility staff shall accept only the original criminal history record report.
B. Facilities using temporary agencies for the provision of substitute staff shall maintain documentation for each substitute staff from the temporary agency verifying that the criminal history record report has been obtained within 30 days of employment, is on file at the temporary agency, and contains no barrier crimes. This documentation shall have the same maintenance and retention requirements of a criminal history record report.
C. A criminal history record report remains valid as long as the employee remains in continuous service at the same facility.
D. When an individual terminates employment at one facility and begins work at another facility, a new criminal history record report and sworn statement or affirmation shall be required.
E. When an employee transfers to a facility owned and operated by the same entity, with a lapse in service of not more than 30 days, a new criminal history record report shall not be required.
Statutory Authority
§§ 63.2-1702, 63.2-1720, and 63.2-1721 of the Code of Virginia.
Historical Notes
Derived from VR615-37-01 § 3.2, eff. July 1, 1989; amended, Virginia Register Volume 8, Issue 17, eff. July 1, 1993; Volume 21, Issue 18, eff. July 1, 2005; Volume 41, Issue 22, eff. August 15, 2025.
22VAC40-90-60. Maintenance of criminal history record reports.
A. Criminal history record reports conforming to the requirements for all employed staff shall be maintained in the files of the facility during the time the individual is employed and for one year after termination of work.
B. Criminal history record reports shall be made available by the facility to the licensing representative.
C. Further dissemination of the criminal history record report information is prohibited other than to a representative of the Commissioner of the Department of Social Services or to a federal or state authority or court as may be required to comply with an express requirement of law for such further dissemination. A licensed adult day center that provides services to individuals receiving services under the state plan for medical assistance or any waiver thereto may disclose to the Department of Medical Assistance Services whether a criminal history background check has been completed for an employee and whether such employee is eligible for employment.
Statutory Authority
§§ 63.2-1702, 63.2-1720, and 63.2-1721 of the Code of Virginia.
Historical Notes
Derived from VR615-37-01 § 3.3, eff. July 1, 1989; amended, Volume 8, Issue 17, eff. July 1, 1993; Volume 19, Issue 2, eff. November 6, 2002; Volume 21, Issue 18, eff. July 1, 2005; Volume 41, Issue 22, eff. August 15, 2025.
22VAC40-90-70. Issuance of a license.
The commissioner shall not issue a license to an assisted living facility if an applicant for licensure required to have a background check has been convicted of a barrier crime as defined in this chapter.
Statutory Authority
§§ 63.2-217, 63.2-1702, 63.2-1720, and 63.2-1721 of the Code of Virginia.
Historical Notes
Derived from Virginia Register Volume 21, Issue 18, eff. July 1, 2005; amended, Virginia Register Volume 34, Issue 2, eff. October 19, 2017.