Title of Regulation: 22VAC40-211. Foster and Adoptive Home Approval Standards for Local Departments of Social Services (adding 22VAC40-211-130).

Statutory Authority: §§ 63.2-217 and 63.2-319 Code of Virginia.

Public Hearing Information: No public hearing is currently scheduled.

Public Comment Deadline: April 15, 2022.

Agency Contact: C. Garrett Jones, Resource Family Program Manager, Department of Social Services, 801 East Main Street, Richmond, VA 23219, telephone (804) 726-7527, or email garrett.jones@dss.virginia.gov.

Basis: Section 63.2-217 of the Code of Virginia authorizes the State Board of Social Services to adopt regulations as may be necessary to carry out the provisions of Title 63.2 of the Code of Virginia. Sections 63.2-21, 63.2-901.1, and 63.2-1734 provide the legal authority for the State Board of Social Services to adopt regulations for foster and adoptive home approval and child welfare agencies.

Purpose: This regulatory action will help protect the health, safety, and welfare of children in care by ensuring collaboration, communication, access, and transparency between the local boards, local child protective agency (LCPA), and foster parents. The regulatory action will include a statewide process for dispute resolution through which a foster parent may contest an alleged violation by the local board or LCPA of a foster parent's rights. The dispute resolution process promotes empowerment of foster parents as valuable members of the permanency planning team.

Substance: The substantive changes include the addition of a new section implementing a foster parent bill of rights, as required by § 63.2-902 of the Virginia Code, and the establishment of a statewide dispute resolution process that a foster parent may use to contest an alleged violation. More specifically, the regulatory action provides additional oversight regarding the rights of foster and adoptive parents and transparency between the local boards, LCPA, and the foster parents. The changes reinforce the provider's role as a member of the child welfare team and the expectation that the local department of social services keep them informed on matters related to the child and which are essential in protecting the child's health, safety, and welfare.

Issues: Previously, foster parents have not been parties to foster care cases. This will be the first time their roles will be officially established. Regulatory changes will benefit foster and adoptive parents by ensuring that their input and opinions are taken into consideration when determining appropriate services for children who are placed in their home. This will also allow for a more individualized approach to the child's treatment plan. It will also increase the retention of approved homes by (i) engaging foster and adoptive parents in a manner that will support positive interactions between agencies and caregivers; (ii) endorsing a healthy and mutually cooperative relationship with foster and adoptive parents by eliminating employee and employer approach; (iii) addressing issues upfront that could possibly lead to families no longer wanting to foster; and (iv) encouraging early intervention for foster families who may be struggling with their role and responsibilities. There are no disadvantages for the public.

Currently, agencies have no formal internal processes in place to address foster or adoptive parents' concerns. These changes will now require agencies to allot time in their challenging schedules to adhere to the timeframes outlined. The regulatory action also ensures appropriate conduct of agency staff when interacting with foster and adoptive parents to achieve more positive outcomes for children and reduce any potential barriers. Lastly, it ensures compliance with current regulations that require foster parent collaboration and input.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. Pursuant to Chapter 336 of the 2019 Acts of Assembly, the State Board of Social Services (Board) proposes to add a section to 22VAC40-211 Adoptive Family Home Approval Standards that would establish foster parents' rights to timely information regarding their foster child prior to and during the child's placement, and if appropriate, after the child leaves foster care. The proposed new section would also establish a dispute resolution process, including an appeals process, for foster parents who allege the local social services board or licensed child placing agency (LCPA) to have violated their rights.

Background. The proposed new section 22 VAC 40-211-130 Foster Parent Bill of Rights and Dispute Resolution Process contains two parts. The first part contains a list of 13 requirements of local departments of social services (LDSS) regarding the information provided to foster parents, including the tone and timing of such communication, framed as a foster parent's "Bill of Rights." The second part establishes a dispute resolution process for foster parents who seek recourse for a violation of these rights.

Part A. Foster Parent Bill of Rights. The first part of the proposed new section would delineate foster parents' rights regarding collaboration, communication, access and transparency. In general, foster parents would have a right to be regarded as the primary caregiver of the child and part of the foster care team and to be treated accordingly. This would include allowing them to have input regarding the child's permanency plan and to be able to communicate (to the extent permitted under federal and state law) with professionals who work directly with the child in foster care, including therapists, physicians, and teachers. Accordingly, the proposed amendments would reiterate that foster parents are afforded the same rights as outlined in the Foster Care Placement Agreement and the Code of Ethics and Mutual Responsibilities.¹

The Department of Social Services (DSS) reports that foster parents would routinely raise concerns regarding LDSS practices, particularly a lack of utilization or placement decisions. While foster families have always had the right to raise their concerns with the local department, there were no formal requirements with respect to who would respond or when a response could be expected. Further, foster parents could always share concerns with DSS and prior to the development of the Constituent Services Unit (CSU), such concerns were routinely handled by DSS staff. In 2018, DSS' Division of Family Services established the CSU to respond to matters raised by constituents, including foster parents. One of the proposed amendments would require that foster parents be provided with a method to contact the local board or LCPA for assistance 24 hours a day and seven days a week. DSS has indicated that they will establish a toll free number as a result of this regulation, which will be reserved for matters specific to foster families and will be received by the CSU's Resource Family Program consultant.

DSS reports that LDSS have always been directed to be transparent in sharing information regarding children in foster care with families providing care; however, they have not previously spelled out what information had to be shared. The foster parents' bill of rights is intended to remedy this by specifying the types of information to be shared and requiring that such information be shared in a timely manner. For example, foster parents would have a right to all background and medical records of the child prior to placement, all information relevant to the child's foster care services, and copies of all documents related to the foster parent, their family, and services provided to the foster home on an ongoing basis. In addition, foster parents would have a right to be notified of all court hearings, scheduled meetings, and decisions made by the court, local board, or LCPA concerning the child's foster care service, and changes to the child's case plan or termination of the child's placement. Foster parents would also have a right to timely responses to requests for information regarding the child's progress after leaving foster care, if it is in the child's best interest.

Part B. Dispute Resolution Process. The second part of the proposed new section implements the statutory requirements created by Chapter 336 of the 2019 Acts of Assembly, which requires local boards and LCPAs to "implement and publicize a dispute resolution process through which a foster parent may contest an alleged violation of the regulations governing the collaboration, communication, access, and transparency between the local boards' (and LCPAs) and foster parents.² Foster parents are directed to first attempt to resolve the dispute informally by contacting the family services specialist assigned to them and describing the conduct they deem a violation of the regulations. The family services specialist is required to respond with a proposed correction or resolution within five business days. If the foster parent and the family services specialist are unable to resolve the conflict informally, the foster parent may file a written complaint with the local board's foster care supervisor or assigned designee, who then has five business days to respond in writing, setting forth all findings regarding the alleged violation and any corrective action to be taken.

The legislation also provides for an appeals process if the foster parent disagrees with the findings or proposed corrective actions made by the foster care supervisor: the foster parent may file a written notice of appeal with the local director describing the alleged violation and including a copy of the foster care supervisor's written response. The local director shall hold a meeting between all parties within seven business days to determine whether the allegations made by the foster parent are valid and whether the recommendations made by the family services specialist and the foster care supervisor were appropriate. Following the meeting, the family services specialist shall produce a written summary of the meeting with the approval of the foster care supervisor. Finally, the local director is required to issue a formal copy of the findings to all parties and, if applicable, recommendations for corrective action. The legislation does not specify a time frame for the actions to be taken following the meeting.

The second part largely mirrors the requirements put forth by the legislation, summarized above, except that the board has added a requirement that foster parents advance the dispute within ten business days of receiving findings and recommendations from the preceding stage of the dispute resolution process. This ten-day window applies in three places: at the beginning of the process, requiring the foster parent to contact their assigned family services specialist within ten days of the conduct they deem to be a violation, after the foster parent hears from the family services specialist, and again after receiving written findings and/or recommendations from the local board's foster care supervisor or designee. DSS has clarified that email would constitute a written communication under this regulation. Because the legislation directed the Board to adopt regulations within 280 days, the proposed amendments have been implemented via emergency regulations effective January 4, 2021.³

Estimated Benefits and Costs. Currently, there are 4,078 children in foster care in Virginia, of which 72% are placed with foster families. (The rest are placed in congregate care facilities or group homes.) 38% (1,553) of children in foster care are placed in foster families approved by LCPAs, while 34% (1,383) are placed in foster families approved by LDSS. To the extent that the proposed changes serve to improve collaboration, communication, access, and transparency regarding a foster child's placement and care, the proposed amendments would ultimately benefit the children placed with foster families.

The proposed changes would benefit foster and adoptive parents by ensuring that their input and opinions are taken into consideration when determining appropriate services for children who are placed in their home. This would allow for a more individualized approach to the child's treatment plan. It would also increase the retention of approved homes by engaging foster and adoptive parents in healthy and mutually cooperative relationship, addressing issues that could possibly lead to families no longer wanting to foster, and engaging in early intervention for foster families who may be struggling with their role and responsibilities.

The proposed amendments could result in a marginally increased workload for LDSS and LCPAs by requiring greater communication with foster parents on their part. However, DSS reports that there have not been any reports of increased workload by LDSS or LCPAs. LDSS have always been instructed to be transparent in sharing information regarding children in foster care with families providing care. The proposed amendments only serve to specify what information must be shared and the process to be followed when a dispute arises. The proposed changes would also ensure that LDSS and LCPAs are in compliance with statute.

Businesses and Other Entities Affected. There are currently 36 LCPAs, many of which operate out of multiple locations throughout the state. The DSS website reports 160 unique LCPA offices.⁴ There are 121 LDSS.⁵

Small Businesses⁶ Affected. The proposed amendment would affect LCPAs; it is unknown how many, if any, LCPAs are small businesses.

Localities⁷ Affected.⁸ The proposed amendment would not affect local governments. LDSS, which are part of DSS, would be affected; LDSS serving a disproportionate number of foster children would be affected more. However, there is no information as to which localities have a disproportionate number of foster children and the extent to which those LDSS would be impacted relative to other LDSS.

Projected Impact on Employment. The proposed amendments do not significantly increase staff workloads and are thus unlikely to affect employment by DSS, LDSS, or by LCPAs.

Effects on the Use and Value of Private Property. The proposed amendments are unlikely to affect the use and value of private property. Real estate development costs are not affected.

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¹See https://www.dss.virginia.gov/files/division/licensing/lcpa/intro_page/current_providers/forms/all_other/032-04-0029-02-eng.pdf for a copy of the current Foster Care Agreement. DSS has indicated that this document will be updated to include the Foster Parent Bill of Rights.

²See https://lis.virginia.gov/cgi-bin/legp604.exe?191+ful+CHAP0336+hil.

³See https://townhall.virginia.gov/L/ViewStage.cfm?stageid=8756.

⁴See https://www.dss.virginia.gov/facility/search/cpa.cgi.

⁵See https://www.dss.virginia.gov/localagency/index.cgi.

⁶Pursuant 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."

⁷"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.

⁸Section 2.2-4007.04 defines "particularly affected" as bearing disproportionate material impact.

Agency's Response to Economic Impact Analysis: The Department of Social Services reviewed the economic impact analysis prepared by the Department of Planning and Budget and has no comments.

Summary:

Pursuant to Chapter 336 of the 2019 Acts of Assembly, the proposed amendments add new regulatory requirements that a local board of social services and a licensed child-placing agency (LCPA) provide foster parents with (i) all reasonably ascertainable background, medical, and psychological records of the child prior to placement; (ii) all information relevant to the child's foster care services; and (iii) copies of all documents related to the foster parent, the foster parent's family, and services provided to the foster home on an ongoing basis. Local boards and LCPAs are also required to notify foster parents of court hearings; scheduled meetings; and decisions made by the court, local board, or LCPA concerning the child's foster care service, changes to the child's case plan, or termination of child's placement in a timely manner. The regulation also requires the timely response to requests for information regarding the child's progress after leaving foster care if it is in the child's best interest. The regulation sets forth a dispute resolution process through which a foster parent may contest an alleged violation by the local board or LCPA, including an appeal process for the foster parent.

22VAC40-211-130. Foster parent bill of rights and dispute resolution process.

A. In accordance with § 63.2-902 of the Code of Virginia relating to foster care agreements and the rights of foster parents regarding resolution of disputes, each local department of social services shall implement and ensure that all foster parents receive a copy of the Foster Parent Bill of Rights and that a signed copy of receipt is placed in the foster parent's file.

Foster parents shall abide by all responsibilities as set forth in state and federal law, including all responsibilities set forth in this chapter.

In addition to any claim for benefits pursuant to 42 USC § 671 et seq., and pursuant to § 63.2-905 of the Code of Virginia, all foster parents have the following rights regarding collaboration, communication, access, and transparency:

1. To be regarded as the primary caregiver of a child placed in foster care and to be treated with dignity, respect, trust, value, and consideration, including the local department giving due consideration to the foster parent's family values, traditions, and beliefs;

2. To receive copies of all documents related to the foster parent, the foster parent's family, and ongoing services provided to the foster home;

3. To be considered part of the foster care team and to be able to contribute input regarding the child's permanency plan and receive copies of the plan;

4. To be provided all reasonably ascertainable background, medical, and psychological records of the child prior to placement, at the initial placement, or at any time during the placement of a child in foster care;

5. To be provided all information relevant to the child's foster care services as allowed by federal and state law;

6. To be notified of court hearings and scheduled meetings;

7. To be informed of decisions made by the court, local board, or licensed child-placing agency concerning the child's foster care services;

8. To be able to communicate, to the extent permitted under federal and state law, with professionals who work directly with the child in foster care, including therapists, physicians, and teachers;

9. To be informed in a timely manner of changes to the child's case plan or the termination of the child's placement;

10. To be afforded the same rights as outlined in the Foster Care Placement Agreement and the Code of Ethics and Mutual Responsibilities;

11. To be provided with reimbursements for costs associated with foster care services in a timely manner;

12. To be provided with a method to contact the local board or licensed child-placing agency for assistance 24 hours a day and seven days a week; and

13. To receive a timely response from the local department of social services regarding whether or not information may be provided to requests for information regarding the child's progress after leaving foster care.

B. Foster parents have a right to file a complaint regarding alleged violations of the regulations governing collaboration, communication, access, and transparency between the local boards, the licensed child-placing agencies, and the foster parents. When filing such a complaint, foster parents must follow the following steps:

1. The foster parent shall contact the service worker assigned to the foster home within 10 business days and provide a detailed description of the conduct constituting the alleged violation of the regulations governing collaboration, communication, access, and transparency between the local boards, the licensed child placing agencies, and the foster parents and attempt to resolve the dispute.

2. The service worker shall respond within five business days and explain any corrective action to be taken in response to the foster parent's complaint.

3. If the foster parent and service worker are unable to resolve the complaint informally, the foster parent may file a written complaint through the dispute resolution process with the local board's foster care supervisor or assigned designee.

a. The written complaint shall include a detailed description of the conduct constituting the alleged violation of the regulations governing collaboration, communication, access, and transparency between the local boards, the licensed child-placing agencies, and the foster parents and a copy of the service worker's response.

b. The written complaint shall be sent to the supervisor and must be received by the supervisor within 10 business days of the foster parent receiving the service worker's response.

4. The foster care supervisor or assigned designee shall respond to the complaint in writing within five business days setting forth all findings regarding the alleged violation and any corrective action taken.

5. If the foster parent disagrees with the findings or corrective actions proposed by the foster care supervisor or assigned designee, the foster parent may appeal the decision to the local director by filing a written notice of appeal.

a. The notice of appeal shall include a detailed description of the conduct constituting the alleged violation of the regulations governing collaboration, communication, access, and transparency between the local boards, the licensed child-placing agencies, and the foster parents and a copy of the foster care supervisor or assigned designee's findings or recommendations.

b. The notice of appeal shall be sent to the local director and must be received by the local director within 10 business days of the foster parent receiving the supervisor's response.

6. The local director shall hold a meeting between all parties within seven business days to gather any information necessary to determine (i) the validity of the alleged violation of the regulations governing collaboration, communication, access, and transparency between the local boards, the licensed child-placing agencies, and the foster parents and (ii) the appropriateness of any recommendations for corrective action made by the family services specialist and foster care supervisor or assigned designee.

7. A summary of the meeting shall be documented in writing by the service worker after approval by the foster care supervisor or assigned designee.

8. Following such meeting and documentation, the local director shall issue to all parties written findings and, when applicable, recommendations for corrective actions.

C. The dispute resolution process set forth in subsection B of this section does not apply to a complaint related to the denial or failure of a local board to act upon an individual's claim for benefits. Complaints related to a claim for benefits shall be appealable pursuant to 42 USC § 671(a)(12) and 22VAC40-201-115.