Bill Text: VA SB409 | 2022 | Regular Session | Chaptered
Bill Title: Criminal records; effect of criminal convictions on licensure, data to be included in report.
Spectrum: Partisan Bill (Democrat 2-0)
Status: (Passed) 2022-04-11 - Governor: Acts of Assembly Chapter text (CHAP0383) [SB409 Detail]
Download: Virginia-2022-SB409-Chaptered.html
Be it enacted by the General Assembly of Virginia:
1. That §§54.1-114 and 54.1-204 of the Code of Virginia are amended and reenacted as follows:
§54.1-114. Biennial report.
A. The Board of Bar Examiners, the Department of Professional and Occupational Regulation and the Department of Health Professions shall submit biennial reports to the Governor and General Assembly on or before November 1 of each even-numbered year. The biennial report shall contain at a minimum the following information for the Board of Bar Examiners and for each board within the two Departments: (i) a summary of the board's fiscal affairs, (ii) a description of the board's activities, (iii) statistical information regarding the administrative hearings and decisions of the board, (iv) a general summary of all complaints received against licensees and the procedures used to resolve the complaints, and (v) a description of any action taken by the board designed to increase public awareness of board operations and to facilitate public participation. The Department of Health Professions shall include, in those portions of its report relating to the Board of Medicine, a compilation of the data required by §54.1-2910.1.
B. The Department of Professional and Occupational Regulation's biennial report shall include, with respect to all licenses, certificates, and registrations made:
1. The total number of applicants and, of that number, the number of those granted a license and the number of those denied;
2. The total number of examinations administered and, of that number, the number of applicants who were successful and the number of applicants who were unsuccessful in passing the examination requirements;
3. The number of initial applicants and renewal applicants with a criminal record and, of those numbers, the number of times each board acted to grant the application or to deny, diminish, suspend, revoke, withhold, or refuse to renew or otherwise limit the requested license, certificate, or registration due at least in part to an individual's criminal conviction;
4. The number of each offense category for which each board acted in subdivision 3, whether that offense be property-related, person-related, or drug-related;
5. The number of guidance documents filed by each board under subsection F of §54.1-204; and
6. Any other data, as determined by the Department to be (i) relevant and helpful to inform the Governor and General Assembly of the impact of criminal convictions on professional or occupational licensure or (ii) necessary to accurately account for all totals requested.
§54.1-204. Prior convictions not to abridge rights.
A. A person shall not be refused a license, certificate,
or registration to practice, pursue, or engage in any regulated
occupation or profession regulated by the Department of Professional and
Occupational Regulation solely because of a prior criminal conviction,
unless the criminal conviction directly relates to the occupation or profession
for which the license, certificate or registration is sought. However, the
regulatory board shall have the authority to refuse a license, certificate or
registration if, based upon all the information available, including the
applicant's record of prior convictions, it finds that the applicant is unfit
or unsuited to engage in such occupation or profession until the
regulatory board completes an individualized assessment of the individual's
criminal record and current circumstances and determines that the criminal
conviction directly relates to the occupation or profession for which the
license, certificate, or registration is sought, as assessed pursuant to subsection
C. However, the regulatory board shall have the authority to refuse a license,
certificate, or registration if, based upon all the information available,
including the applicant's record of prior convictions, it finds that the
applicant is unfit or unsuited to engage in such occupation or profession. The
regulatory board must complete the individualized assessment prior to refusing
a license, certificate, or registration.
B. The regulatory board shall not require an applicant to disclose an excluded record, and an excluded record shall not be the basis for the refusal of a license, certificate, or registration by the board. An excluded record is any conviction that has been sealed, annulled, dismissed, expunged, or pardoned.
A regulatory board or department review of a person's criminal history record shall be limited to any conviction, finding of guilt, or plea of guilty open to disclosure pursuant to §19.2-389.3, regardless of whether the sentence is imposed, suspended, or executed. Any plea of nolo contendere shall be considered a conviction for the purposes of this section. No regulatory board shall consider information in a criminal history record related solely to an arrest or charge.
B. C. In determining whether a non-excluded criminal
conviction directly relates to an occupation or profession, the regulatory
board shall consider the following criteria:
1. The nature and seriousness circumstances of
the crime;
2. The relationship of the crime to the purpose for requiring a license to engage in the occupation;
3. The extent to which the occupation or profession might
offer an opportunity present a substantial risk to engage in further
criminal activity of the same type as that in which the person had been
involved;
4. The relationship of the crime to the ability, capacity
or fitness qualifications required to perform the duties and
discharge the responsibilities of practice the occupation or
profession in a competent manner;
5. The extent and nature of the person's past criminal
activity convictions;
6. The age of the person at the time of the commission of the crime;
7. The amount of time that has elapsed since the person's
last involvement in the commission of a crime most recent conviction;
8. The reasonable progress made toward the completion of the sentence, whether the setting of that sentence be probation, parole, or a term of incarceration;
9. The successful completion of treatment for drugs or alcohol abuse if ordered, recommended, or assigned by a court or as a condition of probation or any community supervision program;
10. The successful completion of rehabilitative programming in the context of a term of incarceration or as a condition of probation, drug court, mental health court, diversion opportunity, or any community supervision program;
11. The conduct and work activity of the person prior to and following the criminal activity; and
9. Evidence 12. Any other evidence of the
person's rehabilitation or rehabilitative effort while incarcerated or
following release that may mitigate against the relationship of past
criminal conduct to the practice of the occupation or profession, including
testimony or recommendations from correctional, probation, or parole officers,
community or faith leaders, counselors or peer recovery specialists, employers,
or other individuals as deemed relevant by the board.
C. D. The board shall consider the criminal
information contained in the applicant's state or national criminal records in
lieu of the applicant providing certified copies of such court records and may
request additional information from the applicant in determining whether a
criminal conviction directly relates to an occupation or profession. If an
applicant is denied a license, certificate, or registration because of the information
appearing in his criminal history record, the regulatory board or department
shall notify the applicant in writing of the specific offense or offenses that
contributed to such denial, how the criminal history directly relates to the
occupation, and how the factors provided in subsection C contributed to the
board's decision. The information shall not be disseminated except as provided
for in this section.
A regulatory board or department may require any applicant for
registration, licensure or, certification, or registration
to submit to fingerprinting and to provide personal descriptive information to
be forwarded along with the applicant's fingerprints through the Central
Criminal Records Exchange to the Federal Bureau of Investigation for the purpose
of obtaining criminal history record information regarding such applicant. Such
applicant shall pay the cost of the fingerprinting or a criminal records check
or both.
The regulatory board or department may enter into a contract to obtain the fingerprints and descriptive information as required for submission to the Central Criminal Records Exchange in a manner and format approved by the Central Criminal Records Exchange.
The Central Criminal Records Exchange, upon receipt of an
applicant's record or notification that no record exists, shall make a report
to the regulatory board or department or their its designee, who
must belong to a governmental entity. If an applicant is denied a
registration, license or certificate because of the information appearing in
his criminal history record, the regulatory board or department shall notify
the applicant that information obtained from the Central Criminal Records
Exchange contributed to such denial. The information shall not be disseminated
except as provided for in this section.
D. A regulatory board or department shall consider the
criminal information as contained in the applicant's state or national criminal
history in lieu of the applicant providing certified copies of such court
records in determining whether a criminal conviction directly relates to an
occupation or profession or if an applicant is unfit or unsuited to engage in
an occupation or profession. The regulatory board or department may request
additional information from the applicant in making such determination.
E. All regulatory boards shall develop and publish on their website guidance documents that inform prospective applicants of the types of criminal offenses that may impede licensure, including specific convictions and application of the factors provided in subsection C.
2. That the provisions of the first enactment of this act amending §54.1-114 of the Code of Virginia shall become effective on July 1, 2025.
3. That the provisions of this act shall not become effective unless reenacted by the 2023 Session of the General Assembly.
