Title of Regulation: 6VAC35-210. Compulsory Minimum Training Standards for Direct Care and Security Employees in Juvenile Correctional Centers (adding 6VAC35-210-10 through 6VAC35-210-90).

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

Public Hearing Information: No public hearing is currently scheduled.

Public Comment Deadline: March 2, 2022.

Effective Date: March 18, 2022.

Agency Contact: Ken Davis, Regulatory Affairs Coordinator, Department of Juvenile Justice, 600 East Main Street, 20th Floor, Richmond, VA 23219, telephone (804) 807-0486, FAX (804) 371-6490, or email kenneth.davis@djj.virginia.gov.

Basis: Section 66-10 of the Code of Virginia vests the Board of Juvenile Justice with the authority to establish compulsory minimum entry-level, in service, and advanced training standards and the time required for completion of such training for persons employed as juvenile correctional officers at a juvenile correctional facility and requires such training to address various topics related to pregnant residents.

Purpose: The new regulation is essential to meet the statutory directives and to ensure that direct care and security employees in state-operated juvenile correctional centers receive adequate, timely, and relevant training to execute their duties in juvenile correctional centers safely and efficiently. Additionally, the new regulation will ensure that staff are prepared to supervise any pregnant youth who may be assigned to a juvenile correctional center. Finally, the new regulation will authorize department staff to apply appropriate sanctions for direct care and security staff who fail to satisfy the training requirements.

Rationale for Using Fast-Track Rulemaking Process: The department does not expect these regulatory provisions to generate controversy. The proposal complies with the statutory mandate by identifying the various training requirements and topics for direct care employees in state-operated juvenile correctional centers. The proposal was developed with consensus among representatives from the department's Training and Development Unit, Division of Residential Services, and Executive Staff, and the department believes these minimum standards will ensure that entry-level and seasoned direct care and security staff are sufficiently trained to perform their roles competently and safely.

Substance: The new regulatory chapter: (i) provides the new chapter's scope as applying exclusively to direct care and security employees in state-operated and certain privately operated juvenile correction centers (JCCs); (ii) requires department-approved instructors to provide the applicable training; (iii) breaks down the 180 hours of training required for direct care and security employees to include a combination of academy and unit training, orientation, and staff observation, along with additional training regarding pregnant residents; (iv) establishes the required volume of annual training for such employees and imposes advanced or specialized training before authorized staff may use certain equipment; (v) outlines the time requirements for completion of training; (vi) sets out testing and attendance requirements for the successful completion of training and establishing sanctions for staff who fail to meet such requirements; (vii) directs the department to develop and the board to approve performance outcomes that identify the competencies and knowledge that should result from training; and (viii) directs the department to maintain documentation for a three-year period demonstrating each applicable employee's compliance with these requirements.

Issues: The proposed regulation is expected to provide numerous benefits to the public and the department. Ensuring that staff receive sufficient and proper training helps to reduce the number of facility incidents and creates an environment more conducive to resident growth and rehabilitation, which ultimately increases the likelihood of the resident's success after release. Applicants for direct care or security positions in JCCs will have clear guidance as to the expectations regarding training, which may decrease staff turnover and conserve training resources. The department does not anticipate any disadvantages to the public or the Commonwealth associated with the proposed new regulation.

Department of Planning and Budget's 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 (Code) and Executive Order 14 (as amended, July 16, 2018). The analysis presented represents DPB's best estimate of these economic impacts.¹

Summary of the Proposed Amendments to Regulation. The Board of Juvenile Justice (Board) proposes to promulgate a new regulation, 6VAC35-210 Compulsory Minimum Training Standards for Direct Care Employees (regulation).

Background. The Board's existing 6VAC35-71 Regulation Governing Juvenile Correctional Centers contains requirements for initial and annual training for direct care and security employees in juvenile correctional centers (JCCs).²

Chapter 526 of the 2020 Acts of Assembly added that for juvenile correctional officers who may have contact with pregnant inmates, such standards shall include training on the general care of pregnant women, the impact of restraints on pregnant inmates and fetuses, the impact of being placed in restrictive housing or solitary confinement on pregnant inmates, and the impact of body cavity searches on pregnant inmates. Consequently, the proposed regulation includes such training.

The Board proposes to further specify the training required at JCCs by promulgating 6VAC35-210 Compulsory Minimum Training Standards for Direct Care Employees. The proposed regulation works in concert with 6VAC35-71 Regulation Governing Juvenile Correctional Centers and includes requirements pertaining to Chapter 526.

The proposed regulation consists of the following sections:

Section 10 Definitions

Section 20 Applicability - Limits the proposed regulation's scope to apply exclusively to direct care employees³ and security employees⁴ working full-time or part-time in state-operated and certain privately operated JCCs.

Section 30 Training providers - States that all training required by the regulation be provided by Department of Juvenile Justice (DJJ) approved general instructors unless otherwise specified.

Section 40 Compulsory minimum training standards - States that individuals hired as direct care employees or security employees shall successfully complete: (i) a minimum of 120 hours of DJJ-approved initial training in accordance with 6VAC35-71-160 Regulation Governing Juvenile Correctional Centers; (ii) facility orientation in accordance with 6VAC35-71-150 Regulation Governing Juvenile Correctional Centers; (iii) a minimum of 24 hours of juvenile correctional center staff observation; and (iv) at least 36 hours of training on a juvenile correctional center housing unit. States that direct care employees and security employees shall receive training by medical staff on the topics specified in Chapter 526. States that existing direct care employees and security employees shall complete a minimum of 40 hours of DJJ-approved annual training in accordance with 6VAC35-71-170 Regulation Governing Juvenile Correctional Centers. States that advanced or specialized training shall be required only for direct care and security employees authorized to use mechanical restraints, the mechanical restraint chair, and protective devices.

Section 50 Time requirements for completion of training - States that a direct care or security employee may not work directly with a resident until the employee has completed all training and orientation required in Section 40 or unless at least one other employee who has completed all applicable facility-based orientation and training is present and supervising the resident. States that required advanced or specialized training shall be completed before direct care or security employees may apply mechanical restraints, the mechanical restraint chair, or protective devices.

Section 60 Testing and attendance requirements - States that direct care employees and security employees shall be deemed to have successfully completed training upon satisfying the following testing requirements:(i) successful passage of all administered written and practical tests, and (ii) demonstrated mastery in all physical restraint techniques. States that direct care employees and security employees shall be deemed noncompliant with these minimum standards and subject to the sanctions set out in Section 70 if they are absent from training for a cumulative period of 32 hours or more during the first five weeks of initial training, regardless of the topic addressed.

Section 70 Failure to comply with minimum standards - States that a direct care or security employee who fails to comply with the minimum attendance requirements or to successfully complete the compulsory initial training shall be removed from service with the department and required to repeat the application and training process in order to qualify for a direct care or security employee position in the future.

Section 80 Development and approval of performance outcomes - Directs DJJ to develop and the Board to approve performance outcomes that identify the competencies and knowledge that should result from training.

Section 90 Training documentation - Directs DJJ to maintain documentation for a three-year period demonstrating each applicable employee's compliance with these requirements.

Estimated Benefits and Costs. Currently there is only one JCC, a state-operated facility in Chesterfield County (Bon Air Juvenile Correctional Center). There are no current plans to open or use additional JCCs.⁵

According to DJJ, with the exception of training for pregnant residents, all of the requirements in the proposed regulation are consistent with current practice at the JCC. All training is conducted by DJJ employees (Section 30). Pursuant to the existing 6VAC35-71-160 Regulation Governing Juvenile Correctional Centers, there are already 120 hours of initial classroom/academic training provided (Section 40). There is facility orientation in accordance with 6VAC35-71-150 Regulation Governing Juvenile Correctional Centers (Section 40). Existing employees annually complete a minimum of 40 hours of training in accordance with 6VAC35-71-170 Regulation Governing Juvenile Correctional Centers (Section 40). The requirements concerning advanced or specialized training for employees authorized to use mechanical restraints, the mechanical restraint chair, and protective devices is consistent with 6VAC35-71-1180 Regulation Governing Juvenile Correctional Centers (Section 40). Time requirements for completion of training (Section 50) is consistent with 6VAC35-71-160 and 6VAC35-71-170 Regulation Governing Juvenile Correctional Centers. The proposed requirement that DJJ maintain documentation for a minimum period of three years demonstrating that each direct care employee and security employee has complied with the requirements (Section 90) is consistent with 6VAC35-71-30 Regulation Governing Juvenile Correctional Centers.

Requirements for a minimum of 24 hours of JCC staff observation (watching, not hands-on) and at least 36 hours of training on a JCC housing unit (hands-on) are not currently specified in regulation or statute, but are consistently done in practice according to DJJ (Section 40). The testing and attendance requirements of proposed Section 60 are consistent with what DJJ applies in practice, but the specific requirements are not currently in regulation or statute. The proposed Section 70 formalizes DJJ's current process for addressing JCC direct care and security staff who fail to meet the initial training requirements and thus is not expected to have a substantive impact on facility operations. DJJ has already produced, and the Board has already approved, a document with performance outcomes that identify the competencies and knowledge that should result from training (Section 80).

DJJ states that it does not currently include the training concerning pregnant residents in its curriculum since the JCC does not currently have any female residents (Section 40). The agency states that if in the future there were to be female residents, the medical staff would then provide the training.

None of the proposed requirements would likely substantively produce additional or reduced expenditures, as with the exception of the training concerning pregnant residents, all of the proposed requirements reflect current practice. The agency believes the training regarding pregnant residents can be provided by their medical staff, and the additional time and effort required would be minimal.

Businesses and Other Entities Affected. The proposed regulation would affect the one existing state-operated JCC. There current are no privately-operated JCCs.

The Code of Virginia requires DPB to assess whether an adverse impact may result from the proposed regulation.⁶ An adverse impact is indicated if there is any increase in net cost or reduction in net revenue for any entity, even if the benefits exceed the costs for all entities combined. No adverse impact is indicated for this proposal.

Small Businesses⁷ Affected. The proposal is unlikely to affect costs for small businesses.

Localities⁸ Affected.⁹ The proposed regulation would affect the one state-operated JCC, which is located in Chesterfield County. The proposal does not require additional expenditures for this or any other localities.

Projected Impact on Employment. The proposed regulation is unlikely to substantively affect total employment.

Effects on the Use and Value of Private Property. The proposed regulation is unlikely to substantively affect the use and value of private property or real estate development costs.

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¹Section 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"Juvenile correctional center" is a public or private facility operated by or under contract with the department where care is provided to residents under the direct care of the Department of Juvenile Justice 24 hours a day, seven days a week.

³"Direct care employee" is an employee whose primary job responsibilities are (i) maintaining the safety, care, and well-being of residents; (ii) implementing the structured program of care and the behavior management program; and (iii) maintaining the security of juvenile correction center facility. For purposes of this regulation, the term "direct care employee" shall include a security employee assigned, either on a primary or as-needed basis, to perform the duties of clauses (i) through (iii) of this definition and who is required to receive initial and annual training in these areas in order to carry out the responsibilities in clauses (i) through (iii) of this definition.

⁴"Security employee" means an employee who is responsible for maintaining the safety, care, and well-being of residents and the safety and security of the facility.

⁵Source: DJJ

⁶Pursuant 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.

⁷Pursuant 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."

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

Agency's Response to Economic Impact Analysis: The responsible Board of Juvenile Justice agency representatives have reviewed the Department of Planning and Budget's (DPB's) economic impact analysis, and the agency is in agreement with DPB's analysis.

Summary:

The action establishes a new regulation providing compulsory training requirements for direct care and security employees in juvenile correctional centers operated by the Department of Juvenile Justice. In addition, the new regulation satisfies requirements of Chapter 366 of the 2019 Acts of Assembly and Chapter 526 of the 2020 Acts of Assembly by requiring the standards include training on various topics involving pregnant residents.

Chapter 210

Compulsory Minimum Training Standards for Direct Care and Security Employees in Juvenile Correctional Centers

6VAC35-210-10. Definitions.

The following words and terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise:

"Board" means the Board of Juvenile Justice.

"Department" means the Department of Juvenile Justice.

"Direct care employee" means an employee whose primary job responsibilities are (i) maintaining the safety, care, and well-being of residents; (ii) implementing the structured program of care and the behavior management program; and (iii) maintaining the security of the facility. For purposes of this chapter, the term "direct care employee" shall include a security employee assigned, either on a primary or as-needed basis, to perform the duties of clauses (i), (ii), and (iii) of this definition and who is required to receive initial and annual training in these areas in order to carry out the responsibilities in clauses (i), (ii), and (iii) of this definition.

"Director" means the director of the department.

"Juvenile correctional center" means a public or private facility operated by or under contract with the department where care is provided to residents under the direct care of the department 24 hours a day, seven days a week.

"Mechanical restraint" means an approved mechanical device that involuntarily restricts the freedom of movement or voluntary functioning of a limb or portion of an individual's body as a means of controlling his physical activities when the individual being restricted does not have the ability to remove the device.

"Mechanical restraint chair" means an approved chair used to restrict the freedom of movement or voluntary functioning of a portion of an individual's body as a means of controlling the individual's physical activities while seated and either stationary or being transported.

"Protective device" means an approved device placed on a portion of a resident's body to protect the resident or staff from injury.

"Security employee" means an employee who is responsible for maintaining the safety, care, and well-being of residents and the safety and security of the facility.

6VAC35-210-20. Applicability.

This chapter applies exclusively to direct care employees and security employees working full-time or part-time in a state-operated juvenile correctional center or in a privately operated juvenile correctional center governed by the Juvenile Corrections Private Management Act (§ 66-25.3 et seq. of the Code of Virginia). Staff employed in juvenile boot camps or locally, regionally, or privately operated alternative direct care programs for juveniles are not subject to the requirements of this chapter.

6VAC35-210-30. Training providers.

All training required by this chapter shall be provided by department-approved general instructors unless otherwise specified.

6VAC35-210-40. Compulsory minimum training standards.

A. Pursuant to the provisions of subdivision 9 of § 66-10 of the Code of Virginia, the board establishes these compulsory minimum training standards.

B. Individuals hired as direct care employees or security employees shall successfully complete the following:

1. A minimum of 120 hours of department-approved initial training in accordance with 6VAC35-71-160;

2. Facility orientation in accordance with 6VAC35-71-150;

3. A minimum of 24 hours of juvenile correctional center staff observation, during which time the trainee shall not be counted in coverage for purposes of meeting the staffing ratio requirements in 6VAC35-71-830; and

4. At least 36 hours of training on a juvenile correctional center housing unit.

C. Direct care employees and security employees shall receive training by medical staff on the following topics: (i) the general care of pregnant residents; (ii) the impact of placement in restrictive housing or room confinement, body cavity searches, and restraints on pregnant residents; and (iii) the impact of restraints on fetuses.

D. Direct care employees and security employees shall complete a minimum of 40 hours of department-approved annual training in accordance with 6VAC35-71-170.

E. Advanced or specialized training shall be required only for direct care and security employees authorized to use mechanical restraints, the mechanical restraint chair, and protective devices. The department shall make other advanced or specialized training available to direct care employees and security employees as a means of enhancing job skills and competencies but shall not require direct care or security employees to complete advanced or specialized training in order to assume position responsibilities.

6VAC35-210-50. Time requirements for completion of training.

A. A direct care or security employee may not work directly with a resident until the employee has completed all training and orientation required in 6VAC35-210-40 or unless at least one other employee who has completed all applicable facility-based orientation and training is present and supervising the resident.

B. Direct care and security employees shall successfully complete additional refresher training on a recurring basis in accordance with subsection D of 6VAC35-210-40.

C. Required advanced or specialized training shall be completed before direct care or security employees may apply mechanical restraints, the mechanical restraint chair, or protective devices.

6VAC35-210-60. Testing and attendance requirements.

A. Direct care employees and security employees shall be deemed in successful completion of training upon satisfying the following testing requirements:

1. Successful passage of all administered written and practical tests, and

2. Demonstrated mastery in all physical restraint techniques.

B. Direct care employees and security employees shall be deemed noncompliant with these minimum standards and subject to the sanctions set out in 6VAC35-210-70 if they are absent from training for a cumulative period of 32 hours or more during the first five weeks of initial training, regardless of the topic addressed.

6VAC35-210-70. Failure to comply with minimum standards.

A direct care or security employee who fails to comply with the minimum attendance requirements or to successfully complete the compulsory initial training shall be removed from service with the department and required to repeat the application and training process in order to qualify for a direct care or security employee position in the future. The department shall follow all applicable policies, rules, and regulations of the Virginia Department of Human Resource Management before imposing this sanction.

6VAC35-210-80. Development and approval of performance outcomes.

A. The department shall develop a performance outcomes document that describes the knowledge and competencies the department expects an employee to demonstrate after completing the training required in this chapter.

B. The performance outcomes shall be approved by the board. The board shall have the authority to amend these outcomes at any time and to establish a practicable timeline for implementation.

6VAC35-210-90. Training documentation.

The department shall maintain documentation for a minimum period of three years demonstrating that each direct care employee and security employee has complied with the requirements in this chapter.