Title of Regulation: 6VAC35-101. Regulation Governing Juvenile Secure Detention Centers (adding 6VAC35-101-45).

Statutory Authority: §§ 16.1-322.7 and 66-10 of the Code of Virginia.

Public Hearing Information: No public hearings are scheduled.

Public Comment Deadline: August 7, 2019.

Effective Date: August 22, 2019.

Agency Contact: Kristen Peterson, Regulatory Coordinator, Department of Juvenile Justice, 600 East Main Street, 20th Floor, Richmond, VA 23219, telephone (804) 588-3902, FAX (804) 371-6490, or email kristen.peterson@djj.virginia.gov.

Basis: Section 66-10 of the Code of Virginia grants the Board of Juvenile Justice the authority to "promulgate such regulations as may be necessary to carry out the provisions of this title and other laws of the Commonwealth." Section 16.1-309.9 of the Code of Virginia requires the board to approve "minimum standards for the construction and equipment of detention homes or other facilities and for food, clothing, medical attention, and supervision of juveniles to be housed in these facilities and programs."

Purpose: The Regulation Governing Juvenile Secure Detention Centers (6VAC35-101) applies to detention centers, defined in 6VAC35-101-10 as "local, regional, or state, publicly or privately operated secure custody facilities that house individuals who are ordered to be detained pursuant to the Code of Virginia." Virginia law allows residents to be detained in secure detention centers pending court hearings for allegations of delinquency (predispositional programs) and for up to six months as ordered by a judge (postdispositional programs). In all such cases, the regulation requires detention centers to comply with the department's certification regulations, which are set out in Regulation Governing the Monitoring, Approval, and Certification of Juvenile Justice Programs and Facilities (6VAC35-20). Currently, neither chapter addresses programs in which secure detention centers enter into agreements to house residents under the custody of an outside entity. This omission prevents the department from fully carrying out its monitoring, audit, and certification responsibilities with respect to programs that house youth under custody of a separate entity. Under existing regulations, the department does not have express authority to interview these residents, and the department cannot review these residents' files or other documentation unless authorized to do so by the outside entity.

This gap in oversight prevents the department from properly exercising its monitoring, audit, and certification authority over the one juvenile detention center that currently has a contract with the federal government to house residents under federal custody. Additionally, it creates ambiguity with respect to certification requirements for programs that are a product of similar contractual arrangements between detention centers and the department to operate alternative direct care programs such as community placement programs (CPPs) and detention reentry programs.

The proposed amendment will give the department the same oversight authority of these programs and the residents placed in these programs as it currently possesses for predispositional and postdispositional programs by compelling the contracting parties to include certain provisions in their agreements. First, the agreement must subject the program to the department's certification regulations. Second, the agreement must give the department the same access to these residents for purposes of monitoring, audit, and compliance as the department has under the certification regulations for all other residents placed in predispositional and postdispositional programs operated by the detention centers.

This regulatory change is essential to protect the health, safety, and welfare of residents under the custody of separate entities and placed in detention centers pursuant to these agreements. The department cannot ensure that the detention centers are supervising and caring for these residents within the parameters of its regulations and in a manner that promotes safety and security if the department cannot question the residents or access their files or other documents.

Rationale for Using Fast-Track Rulemaking Process: On September 5, 2018, at the request of the department, the board voted to approve an amendment to the Regulation Governing Juvenile Secure Detention Centers for submission through the fast-track rulemaking process. The department identified a gap in its oversight authority with respect to detention centers that enter into agreements to house residents who are under the custody of a separate entity. The proposed amendment will require detention centers, when entering into such agreements with outside entities, to include provisions in the agreement that subject these programs to the department's regulations and that give the department express authority to interview residents, review files, and perform all other activities necessary to determine compliance with department regulation.

The department is not expecting this rulemaking to be controversial. All juvenile secure detention centers operating in the Commonwealth of Virginia, including those that have agreements with outside entities to house youth in the outside entity's custody, currently are subject to department detention center and certification regulations by virtue of their predispositional or postdispositional programs. As a matter of practice, these facilities already seek to comply with the Regulation Governing Juvenile Secure Detention Centers for all residents, even those who are in separate programs or units in the detention center in accordance with these agreements.

The proposed amendment will give the department the authority necessary to determine whether all programs operated in detention centers regulated by the department are complying with state regulations. This authority will assist the department in its efforts to ensure the safety, security, and health of the residents placed in these programs.

Substance: The proposal adds 6VAC35-101-45 to 6VAC35-101, Regulation Governing Juvenile Secure Detention Centers. The new section requires juvenile detention centers, when entering into agreements with separate entities to detain a juvenile in the separate entity's custody, to ensure that the agreement subjects the program to the department's certification regulations and gives the department the same access to the detained juvenile and the juvenile's records as to all other residents in the detention center. The purpose of this change is to ensure that the department will be able to conduct full audits and have full certification authority over all programs operated in the facility. The proposed amendment is intended to apply to all agreements that meet the criteria set out in the proposal, whether written or oral. The text of the proposed amendment, as initially submitted, erroneously limited the application of the proposal to written agreements. The department has amended the language to correct this error.

As a result of this proposal, the department will have expanded certification authority over these separately-operated programs to carry out any of the following: (i) through the regulatory authority, seek whatever reports and information necessary to establish compliance with the regulatory requirements; (ii) respond to health, welfare, or safety violations in the facility by withholding funds, removing juveniles from the program or facility, placing the program or facility on probationary certification status, or summarily suspending the facility's certificate; (iii) administer periodic, scheduled monitoring visits or monitoring reviews; (iv) perform periodic certification audits; (v) require the program to conduct annual self-audits; (vi) compel the program to develop a corrective action plan for each finding of noncompliance discovered during an audit; or (vii) certify or decertify the facility for a specified period of time in response to a certification audit.

Issues: This proposal is expected to benefit the public by giving the department a vehicle to monitor residents in detention center programs who are under the custody of separate entities. The department will ensure that detention centers are administering these programs in accordance with applicable state regulations and operating them in a manner that protects the safety and security of the residents, staff, and others in these facilities.

The proposal also will benefit other parties to these agreements, including the department, by providing an additional level of monitoring and oversight that will help to ensure that these programs are operating safely and effectively.

The department does not expect this amendment to disadvantage the general public or the Commonwealth.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. The Board of Juvenile Justice (Board) proposes to eliminate a gap in its authority with respect to juvenile detention centers (JDCs) that enter into agreements to house residents who are under the custody of a separate entity. Currently, the Regulation Governing Juvenile Secure Detention Centers is silent as to agency oversight over these third-party agreements.

Result of Analysis. Overall, the benefits likely exceed the costs for the proposed changes.

Estimated Economic Impact. All JDCs operating in the Commonwealth are subject to the Department of Juvenile Justice's (DJJ's) detention center¹ and certification² regulations by virtue of their predispositional or postdispositional programs. But not all juvenile detainees within those facilities are covered. The current Regulation Governing Juvenile Secure Detention Centers does not address contracts between JDCs and separate entities for purposes of detaining juveniles under the separate entity's custody.

There is currently one JDC in Virginia with such a contract with the federal government's Office of Refugee Resettlement (ORR). It has 22 federal migrant children detained. There are also multiple JDCs that have contracts with DJJ to operate detention reentry, community placement, or other similar programs. In FY 2017, nine JDCs operated community placement programs and 13 operated detention reentry programs. Technically, in addition to ORR, DJJ also counts as a separate entity (from the JDCs).

DJJ does currently have express authority to monitor juvenile residential facilities and audit them for compliance with the Regulations Governing Juvenile Secure Detention Centers; however, there is no express statutory or regulatory mechanism giving the DJJ access to the files of residents who are housed in a detention center under these contractual arrangements. Nor is the DJJ authorized to interview these residents to assess the facility's compliance with the regulation without authorization by the outside entity.

Accordingly, the Board proposes to create a new section of the Regulations Governing Juvenile Secure Detention Centers entitled "Contracts between juvenile detention centers and separate entities" that would add language to require JDCs that agree to house residents under the custody of a separate entity to mandate that the programs be subject to the agency's certification regulations. This provision would be included in the contract. In addition, the contract would also authorize DJJ to monitor, audit, and certify these programs using the same criteria as existing predispositional and postdispositional programs operated in the JDC for state-assigned residents. By mandating that these contractual arrangements include an express provision giving the Department this authority, DJJ's certification unit will have the same level of access to these residents and their files as it has currently for residents in predispositional and postdispositional programs. The proposed new language enables the agency to effectively monitor, audit, and certify programs housing youth under a separate entity's custody.

In practice for the juveniles at JDCs through contracts with DJJ for detention reentry, community placement, or other similar programs, the facilities grant DJJ the same level of access to these residents and their files as it has currently for residents in predispositional and postdispositional programs. Thus, the proposed amendments would not likely significantly affect these children and programs.

DJJ does not have such access to the migrant children and their files. The proposed amendments may help the agency ensure that the detention centers are supervising and caring for these residents within the parameters of its regulations and in a manner that promotes safety and security. DJJ staff would spend some additional time reviewing files and interviewing residents. The potential benefits likely exceed the small cost.

Businesses and Entities Affected. The proposed amendments affect DJJ, juvenile detention centers, and outside entities that enter into contracts to allow juvenile detention centers to house residents under that outside entity's custody. The federal Office of Refugee Resettlement currently has a written agreement with a juvenile detention centers in Virginia.

Localities Particularly Affected. The proposed amendments do not disproportionally affect particular localities.

Projected Impact on Employment. The proposed amendments are unlikely to significantly affect total employment.

Effects on the Use and Value of Private Property. The proposed amendments would not affect the use and value of private property.

Real Estate Development Costs. The proposed amendments would not affect real estate development costs.

Small Businesses:

Definition. Pursuant to § 2.2-4007.04 of the Code of Virginia, 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."

Costs and Other Effects. The proposed amendments would not affect costs for small businesses.

Alternative Method that Minimizes Adverse Impact. The proposed amendments do not adversely affect small businesses.

Adverse Impacts:

Businesses. The proposed amendments do not adversely affect businesses.

Localities. The proposed amendments do not adversely affect localities.

Other Entities. The proposed amendments do not adversely affect other entities.

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¹Regulation Governing Juvenile Secure Detention Centers: https://law.lis.virginia.gov/admincode/title6/agency35/chapter101/

²Regulation Governing the Monitoring, Approval, and Certification of Juvenile Justice Programs and Facilities: https://law.lis.virginia.gov/admincode/title6/agency35/chapter20/

Agency's Response to Economic Impact Analysis: The Board of Juvenile Justice has reviewed the Department of Planning and Budget's economic impact analysis and concurs with the analysis.

Summary:

The amendments add required provisions for contracts between juvenile detention centers and separate entities detaining juveniles under the separate entity's custody. The contract must include provisions that (i) subject the program to the department's certification regulations and (ii) authorize the department to monitor, audit, and certify the program in the same manner as existing predispositional and postdispositional programs operated in the detention center for state-assigned residents.

6VAC35-101-45. Contracts between juvenile detention centers and separate entities.

When a detention center enters into an agreement with a separate entity for the purpose of detaining a juvenile in the separate entity's custody, the agreement shall provide that the program housing the juvenile shall be subject to 6VAC35-20, Regulation Governing the Monitoring, Approval, and Certification of Juvenile Justice Programs and Facilities.

1. For purposes of demonstrating compliance with this chapter, the agreement shall allow the department the same access to the detained juvenile and to the records and reports for the detained juvenile as is authorized currently under § 16.1-309.10 of the Code of Virginia and 6VAC35-20 for all other residents in the detention center.

2. Nothing in this section shall prevent the detention center and the separate entity from agreeing that services and treatment shall exceed the requirements of this chapter for those youth in the custody of the separate entity.