TITLE 22. SOCIAL SERVICES

STATE BOARD OF SOCIAL SERVICES

Fast-Track Regulation

Title of Regulation: 22VAC40-90. Regulation for Background Checks for Assisted Living Facilities and Adult Day Centers (amending 22VAC40-90-10 through 22VAC40-90-60).

Statutory Authority: § 63.2-217 of the Code of Virginia.

Public Hearing Information: No public hearing is currently scheduled.

Public Comment Deadline: July 16, 2025.

Effective Date: August 15, 2025.

Agency Contact: Samantha Fogt, Licensing Consultant, Department of Social Services, 5600 Cox Road, Glen Allen, VA 23060, telephone (804) 845-0308, or email samantha.fogt@dss.virginia.gov.

Basis: The State Board of Social Services is required by §§ 63.2-217, 63.2-1720, 63.2-1732, and 63.2-1733 of the Code of Virginia to promulgate regulations that are conducive to the safety and welfare of the residents of any assisted living facility (ALF) and participants of any adult day center (ADC).

Purpose: This action is essential to protect the health, safety, and welfare of residents of ALFs and participants of ADCs because it provides clarification to existing requirements, aligns the regulation with statutory requirements, and reduces the regulatory burden.

Rationale for Using Fast-Track Rulemaking Process: This action is expected to be noncontroversial and appropriate for the fast-track rulemaking process because the amendments provide clarification, align requirements with statute, and reduce regulatory burdens. Additionally, background checks for employees of any ALF or ADC are currently required by statute.

Substance: The amendments clarify text to make the regulation easier to understand and align text with current Code of Virginia requirements. The amendments reduce regulatory burdens while protecting the health and safety of ALF residents and ADC participants.

Issues: The primary advantage of this action to the public is reduced regulatory burdens and clarification of the regulatory text. There are no disadvantages to the public associated with this action. There are no advantages or disadvantages to the agency or Commonwealth, as background checks are a current requirement for employees of any ALF or ADC.

Department of Planning and Budget Economic Impact Analysis:

The Department of Planning and Budget (DPB) has analyzed the economic impact of this proposed regulation in accordance with § 2.2-4007.04 of the Code of Virginia and Executive Order 19. The analysis presented represents DPB's best estimate of the potential economic impacts as of the date of this analysis.¹

Summary of the Proposed Amendments to Regulation. In response to Executive Order 19 (2022) and Executive Directive 1 (2022), as well as a 2024 periodic review of the regulation, the State Board of Social Services (board) proposes to amend the regulation governing criminal record checks for assisted living facilities (ALF) and adult day centers (ADC).

Background. Executive Directive 1 (2022) directs executive branch entities under the authority of the Governor to initiate regulatory processes to reduce by at least 25% the number of regulations not mandated by federal or state statute, in consultation with the Office of the Attorney General, and in a manner consistent with the laws of the Commonwealth.² The proposed changes also result from a 2024 periodic review, and include a number of technical changes to clarify the language and align the regulation with the Code of Virginia.³ The most substantive changes are summarized below. 22VAC40-90-10 would be amended to update the definition of "barrier crimes" to refer to the appropriate sections of the Code of Virginia. Legal base and applicability 22VAC40-90-20 currently contains the specific requirements in the Code of Virginia pertaining to background checks for applicants for licensure, staff, and volunteers at ALFs and ADCs. This section would be updated to include a new statutory requirement that students of a certified nurse aide program operated by an ALF be notified of the statutory background check requirements prior to or upon enrollment in the program. 22VAC40-90-30 would be amended to remove repetitive language and redundant requirements. 22VAC40-90-40 would be amended to clarify the requirements and align with statute. 22VAC40-90-40 and 22VAC40-90-60 regarding keeping records confidential and in a locked file would be combined in 22VAC40-90-40. 22VAC40-90-50 would be amended to remove repetitive and redundant language. 22VAC40-90-50 currently requires that facility operators inspect the criminal history report and verify that specific details (e.g., name, date of birth) match another form of identification. This requirement would be struck, as the Department of Social Services (DSS) reports that such verification is considered a routine part of the hiring process. This section also requires that an individual who takes a leave of absence longer than six consecutive months would be required to submit a new background check report and sworn statement; this requirement would be removed to reduce the regulatory burden for such individuals and the ALF or ADC that employs them. 22VAC40-90-60 would be amended to remove requirements specifying where and how reports must be maintained for employees who rotate among several facilities operated by the same entity. DSS reports that this change would reduce administrative burden and may already be obsolete to the extent that such entities often have a centralized human resources department with electronic records. This section would also be updated to include a statutory requirement pertaining to ADCs that serve the Medicaid population.

Estimated Benefits and Costs: The proposed amendments would reduce certain regulatory requirements for ALFs and ADCs and the staff applying for employment at these facilities. This would benefit those facilities and staff to the extent that they would be practically affected by the changes. For example, staff who take a leave of absence exceeding six months would no longer have to provide an updated criminal history record check and sworn statement. Similarly, entities that operate multiple facilities, rotate staff among them, and maintain paper records would have greater flexibility regarding where such records are maintained. Updating the regulation to conform to statute and removing repetitive language would make the regulation easier to understand and comply with. The proposed amendments would not add any discretionary requirements and are thus not expected to create new costs.

Businesses and Other Entities Affected. The proposed changes would reduce some requirements and update and condense the regulation. DSS reports that there are currently 638 licensed ALFs and ADCs, including one ALF operated by the Department of Veterans Services, one ADC operated by Virginia Tech, and eight ALFs and 11 ADCs operated by localities or local community services boards (CSB). DSS also reports that many of the privately owned and operated ALFs and ADCs are likely to meet the definition of small businesses. These entities would benefit by the removal of requirements that may currently, or in the future, apply to them and create an administrative burden. The Code of Virginia requires DPB to assess whether an adverse impact may result from the proposed regulation.⁴ An adverse impact is indicated if there is any increase in net cost or reduction in net benefit for any entity, even if the benefits exceed the costs for all entities combined.⁵ Since the proposed changes do not create any new requirements, no adverse impact is indicated.

Small Businesses⁶ Affected.⁷ The proposed amendments do not adversely affect small businesses. As mentioned previously, some of the ALFs and ADCs that are small businesses may benefit from the removal of certain requirements.

Localities⁸ Affected.⁹ DSS reports that there are currently 19 ALFs and ADCs operated by local or regional entities. This includes eleven ADCs operated by the city of Alexandria, and the counties of Arlington, Chesterfield, Fairfax, Loudoun, and Prince William, plus two ALFs operated by Chesterfield and Orange counties, respectively. There are currently six ALF operated by the Fairfax County Redevelopment and Housing Authority, Mount Rogers Community Services Board (CSB), New River Valley CSB, Region Ten CSB, and Western Tidewater CSB. These localities and local entities may benefit from the removal of certain requirements. The proposed amendments do not create new costs for local governments.

Projected Impact on Employment. The proposed amendments are unlikely to affect total employment. Some proposed amendments, such as not requiring a new background check after a leave of absence may benefit nursing aides and other staff employed by an ALF and ADC.

Effects on the Use and Value of Private Property. The proposed amendments could marginally increase the value of certain private ALFs and ADCs if they benefit from the proposed regulatory reductions. Real estate development costs would not be affected.

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¹ Section 2.2-4007.04 of the Code of Virginia requires that such economic impact analyses determine the public benefits and costs of the proposed amendments. Further the analysis should include but not be limited to: (1) the projected number of businesses or other entities to whom the proposed regulatory action would apply, (2) the identity of any localities and types of businesses or other entities particularly affected, (3) the projected number of persons and employment positions to be affected, (4) the projected costs to affected businesses or entities to implement or comply with the regulation, and (5) the impact on the use and value of private property.

² See https://www.governor.virginia.gov/media/governorvirginiagov/governor-of-virginia/pdf/ed/ED-1-Regulatory-Reduction.pdf.

³ See https://townhall.virginia.gov/L/ViewPReview.cfm?PRid=2508.

⁴ Pursuant to § 2.2-4007.04 D: In the event this economic impact analysis reveals that the proposed regulation would have an adverse economic impact on businesses or would impose a significant adverse economic impact on a locality, business, or entity particularly affected, the Department of Planning and Budget shall advise the Joint Commission on Administrative Rules, the House Committee on Appropriations, and the Senate Committee on Finance. Statute does not define "adverse impact," state whether only Virginia entities should be considered, nor indicate whether an adverse impact results from regulatory requirements mandated by legislation.

⁵ Statute does not define "adverse impact," state whether only Virginia entities should be considered, nor indicate whether an adverse impact results from regulatory requirements mandated by legislation. As a result, DPB has adopted a definition of adverse impact that assesses changes in net costs and benefits for each affected Virginia entity that directly results from discretionary changes to the regulation.

⁶ Pursuant to § 2.2-4007.04, small business is defined as "a business entity, including its affiliates, that (i) is independently owned and operated and (ii) employs fewer than 500 full-time employees or has gross annual sales of less than $6 million."

⁷ If the proposed regulatory action may have an adverse effect on small businesses, § 2.2-4007.04 requires that such economic impact analyses include: (1) an identification and estimate of the number of small businesses subject to the proposed regulation, (2) the projected reporting, recordkeeping, and other administrative costs required for small businesses to comply with the proposed regulation, including the type of professional skills necessary for preparing required reports and other documents, (3) a statement of the probable effect of the proposed regulation on affected small businesses, and (4) a description of any less intrusive or less costly alternative methods of achieving the purpose of the proposed regulation. Additionally, pursuant to § 2.2-4007.1 of the Code of Virginia, if there is a finding that a proposed regulation may have an adverse impact on small business, the Joint Commission on Administrative Rules shall be notified.

⁸ "Locality" can refer to either local governments or the locations in the Commonwealth where the activities relevant to the regulatory change are most likely to occur.

⁹ Section 2.2-4007.04 defines "particularly affected" as bearing disproportionate material impact.

Agency Response to Economic Impact Analysis: The Department of Social Services has reviewed the economic impact analysis prepared by the Department of Planning and Budget and concurs.

Summary:

Pursuant to Executive Directive One (2022) and Executive Order 19 (2022) and a 2024 periodic review, the amendments make technical and clarifying changes to regulatory text, align the regulation with statute, and reduce regulatory requirements associated with provisions established for background checks for staff of assisted living facilities and adult day centers.

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 same the crime from employment at a licensed assisted living facility or adult day center and that automatically bar licensure of applicants convicted of same the crime from assisted living facility licensure. These crimes, 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, are a felony violation of § 16.1-253.2; any violation of § 18.2-31, 18.2-32, 18.2-32.1, 18.2-32.2, 18.2-33, 18.2-35, 18.2-36, 18.2-36.1, 18.2-36.2, 18.2-41, or 18.2-42; any felony violation of § 18.2-46.2, 18.2-46.3, 18.2-46.3:1, or 18.2-46.3:3; any violation of § 18.2-46.5, 18.2-46.6, or 18.2-46.7; any violation of subsection A or B of § 18.2-47; any violation of § 18.2-48, 18.2-49, or 18.2-50.3; any violation of § 18.2-51, 18.2-51.1, 18.2-51.2, 18.2-51.3, 18.2-51.4, 18.2-51.5, 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, 18.2-55, 18.2-55.1, 18.2-56, 18.2-56.1, 18.2-56.2, 18.2-57, 18.2-57.01, 18.2-57.02, 18.2-57.2, 18.2-58, 18.2-58.1, 18.2-59, 18.2-60, or 18.2-60.1; any felony violation of § 18.2-60.3 or 18.2-60.4; any violation of § 18.2-61, 18.2-63, 18.2-64.1, 18.2-64.2, 18.2-67.1, 18.2-67.2, 18.2-67.3, 18.2-67.4, 18.2-67.4:1, 18.2-67.4:2, 18.2-67.5, 18.2-67.5:1, 18.2-67.5:2, 18.2-67.5:3, 18.2-77, 18.2-79, 18.2-80, 18.2-81, 18.2-82, 18.2-83, 18.2-84, 18.2-85, 18.2-86, 18.2-87, 18.2-87.1, or 18.2-88; any felony violation of § 18.2-279, 18.2-280, 18.2-281, 18.2-282, 18.2-282.1, 18.2-286.1, or 18.2-287.2; any violation of § 18.2-289, 18.2-290, 18.2-300, 18.2-308.4, or 18.2-314; any felony violation of § 18.2-346; any violation of § 18.2-355, 18.2-356, 18.2-357, or 18.2-357.1; any violation of subsection B of § 18.2-361; any violation of § 18.2-366, 18.2-369, 18.2-370, 18.2-370.1, 18.2-370.2, 18.2-370.3, 18.2-370.4, 18.2-370.5, 18.2-370.6, 18.2-371.1, 18.2-374.1, 18.2-374.1:1, 18.2-374.3, 18.2-374.4, 18.2-379, 18.2-386.1, or 18.2-386.2; 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, 18.2-433.2, 18.2-472.1, 18.2-474.1, 18.2-477, 18.2-477.1, 18.2-477.2, 18.2-478, 18.2-479, 18.2-480, 18.2-481, 18.2-484, 18.2-485, 37.2-917, or 53.1-203; or any substantially similar offense under the laws of another jurisdiction. 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 of Virginia. 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 of Virginia. This is, as required as specified in by §§ 63.2-1720 and 63.2-1721 of the Code of Virginia.

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.

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. (NOTE: 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. The sworn statement or affirmation shall be attached and filed with the criminal history record report.

E. The commissioner shall provide a copy of the sworn statement or affirmation to any applicant denied licensure as an assisted living facility because of information on the sworn statement or affirmation.

F. D. Further dissemination of the sworn statement or affirmation information is prohibited other than to the commissioner's 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.

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 on or prior to the 30th day 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 only 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. A No facility shall not 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.

22VAC40-90-50. Validity of criminal history record reports.

A. Facility staff shall accept only the original criminal history record report. Photocopies will not be acceptable.

EXCEPTION: B. Facilities using temporary agencies for the provision of substitute staff shall request a letter from the agency containing the following information: 1. The name of the substitute staff person; 2. The date of employment; and 3. A statement 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 does not contain contains no barrier crimes. This letter documentation shall have the same maintenance and retention requirements of a criminal history record report.

B. Each criminal history record report shall be verified by the operator of the facility by matching the name, social security number and date of birth to establish that all information pertaining to the individual cleared through the Central Criminal Records Exchange is exactly the same as another form of identification such as a driver's license. If any of the information does not match, a new criminal history record request must be submitted to the Central Criminal Records Exchange with correct information.

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, the criminal history record report secured for the prior facility shall not be valid for the new facility. A a new criminal history record report and sworn statement or affirmation shall be required.

EXCEPTIONS:

1. 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. The file at the previous facility shall contain a statement in the record of the former employee indicating that the original criminal history record report has been transferred or forwarded to the new location.

2. A criminal history record report for an individual who takes a leave of absence will remain valid as long as the period of separation does not exceed six consecutive months. Once a period of six consecutive months has expired, a new criminal history record report and sworn statement or affirmation are required.

22VAC40-90-60. Maintenance of criminal history record reports.

A. The original report shall be maintained at the facility where the person is employed.

B. 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.

EXCEPTION: See 22VAC40-90-50 D 1.

C. B. Criminal history record reports shall be made available by the facility to the licensing representative.

D. When an employee is rotated among several facilities owned or operated by the same entity, the original criminal history record report shall be maintained at the primary place of work or designated facility location. A copy of the criminal history record report shall be on file at the facility where the employee is actively working which has a notation of where the original report is filed.

E. Criminal history record reports shall be maintained in locked files accessible only to the licensee, administrator, board president, or their designee.

F. C. Further dissemination of the criminal history record report information is prohibited other than to the commissioner's 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.