Title of Regulation: 22VAC40-705. Child Protective Services (amending 22VAC40-705-160, 22VAC40-705-170).

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

Public Hearing Information: No public hearing is currently scheduled.

Public Comment Deadline: October 13, 2023.

Agency Contact: Kristen Eckstein, Department of Social Services, 801 East Main Street, Richmond, VA 23219, telephone (804) 726-7897, or email kristen.eckstein@dss.virginia.gov.

Basis: The State Board of Social Services has legal authority pursuant to § 63.2-217 of the Code of Virginia to adopt regulations as necessary or desirable to carry out the purpose of Title 63.2 of the Code of Virginia. Under § 63.2-203 of the Code of Virginia, the Commissioner of the Department of Social Services is charged with enforcing regulations adopted by the board. Section 63.2-1515 of the Code of Virginia requires that the board prescribe regulations regarding the Central Registry System (CRS).

Purpose: The regulatory change is essential to the health, safety, and welfare of citizens, as it will (i) expedite the application and hiring processes so that child care workers can provide services and care as quickly as possible and (ii) allow working parents to ensure their families' financial stability and well-being. In addition, children's residential facilities and foster care placements provide for the care and well-being of vulnerable children, and delays in CRS processing result in delays in staffing and placements for these children. This is particularly important now, since Virginia is experiencing a critical shortage of foster homes and other placements for children.

The Central Registry Unit (CRU) within the Office of Background Investigations processes requests for all children's programs licensed in Virginia, as well as out of state and international requests for applicants who may have previously lived in Virginia. Section 63.2-1515 of the Code of Virginia mandates that searches be completed within 10 business days of receiving the request. The CRS contains names of individuals identified as abusers or neglectors in founded child abuse and neglect investigations conducted in Virginia. Findings are made by Child Protective Services staff in local departments of social services and are maintained by the Department of Social Services (DSS). The volume of search requests varies from 750 per day to 1,600 per day during peak season, which runs late April through September. Virginia is one of 13 states that requires notarization of an applicant's consent to a Central Registry search. Child care providers mail the applicant's notarized authorization for the Central Registry request, along with payment, to the CRU to conduct the search. The notary requirement slows down this process and places a burden on applicants, who must print the application form, locate and travel to a notary, and give the notarized form to the child care provider.

The high volume of daily requests, manual processing, and staffing requirements can cause delays that affect the ability of the CRU to meet the mandatory timeframe of 10 days to process requests. In an effort to resolve these issues and expedite this process, DSS is currently implementing the new Virginia Enterprise Licensing Application (VELA) public-facing portal, which will eliminate the need for the manual submission of documents, manual data entry, and mailing of forms and payments. The requirement that an applicant's consent to a Central Registry search be notarized remains a regulatory requirement that will be an impediment to facilitating and expediting this process in order to better serve the citizens of the Commonwealth and meet the mandatory timeframe of 10 days to process requests.

Making the application process less onerous will allow qualified individuals to be approved more quickly so that they can begin working or volunteering with children sooner, allow child care providers to hire staff more quickly, and allow volunteer organizations to bring on volunteers more quickly. This is particularly important in light of current shortages of affordable, accessible child care as well as staffing shortages in the Commonwealth. Ensuring that families have access to child care and that facilities are well-staffed is essential to the financial well-being of families and the health, safety, and welfare of children in care. In addition, Virginia is currently experiencing a critical shortage of foster homes. Making the CRS process faster and easier will alleviate delays in staffing and placements for children's residential facilities and foster care placements.

Substance: The proposed amendments change (i) "the individual's notarized consent" to "the individual's signed consent" and (ii) "notarized signature" to "signature."

Issues: The primary advantage of this regulatory action to the public is the ability to facilitate and expedite the hiring of staff who provide services or care to children. During the COVID-19 pandemic, many child care facilities closed and others struggled to maintain the required staffing levels to provide adequate care. Hiring staff has continued to be challenging as the demand for child care has increased. Eliminating the notary requirement in this regulation removes an inconvenient, burdensome, and time-consuming element of the application process for individuals who wish to provide care for or services to children and would allow providers to get staff into place more quickly. Others who wish to provide services or care to children, such as volunteers, foster parents, and those who work in child placing agencies, would benefit similarly from not having to meet the notary requirement. Advantages to the agency include the improvement of customer service to child care providers and staff and others who provide services and care to children by offering them an easier and less cumbersome process. This process would also be more efficient for agency staff who process applications. There are no disadvantages to the public or the Commonwealth.

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 19. The analysis presented represents DPB's best estimate of these potential economic impacts as of the date of this analysis.¹

Summary of the Proposed Amendments to Regulation. The State Board of Social Services (Board) proposes to implement a permanent regulatory change to replace an emergency regulation² that removed the requirement that an individual's consent for a search of its Central Registry System (CRS) be notarized.

Background. The Department of Social Services (DSS) searches the CRS at the request of individuals who seek to provide services or care to children through employment, foster care, adoption, or volunteer opportunities to determine if those individuals have a founded case of child abuse or neglect. These searches are performed when a child care provider mails the applicant's notarized authorization for a search of the CRS, along with payment to DSS. However, DSS states that the notarization requirement delays the application process and places a burden on applicants, who must print the application form, locate and travel to a notary, and then give the notarized form to the child care provider. As a result, the Board removed the notarization requirement effective September 2, 2022, through an emergency regulation. This proposed change will make the emergency regulation permanent.

Estimated Benefits and Costs. DSS performs approximately 180,000 searches of its CRS annually for background information on prospective employees and volunteers involved in children's services or care. Under the proposed changes, their consent to a CRS search would no longer have to be notarized. As a result, affected individuals would no longer need to be concerned with finding a notary public, with the time and travel costs involved in getting in front of a notary public, and with a potential fee³ that a notary may require for services. Given the volume of annual searches conducted, this change may provide substantial savings mainly in terms of an of applicant's time and travel expenses. For example, an hour of time saved over 180,000 cases would translate to 87 full-time employment positions statewide in a given year.⁴

Additionally, even though the notarization can be secured relatively quickly, it would not be unusual to see delays in the application process and placement of children by a few days due to scheduling issues. Thus, parents, employees, volunteers, employers, and volunteer organizations may benefit from an expedited application process. DSS states that this benefit is particularly important now because Virginia is experiencing a critical shortage of foster homes and other placements for children. On the other hand, removing the notarization requirement may make the applicant's consent more susceptible to tampering, though such an action would be illegal.

Businesses and Other Entities Affected. According to DSS, 180,000 CRS search requests originate from more than 6,000 licensed childcare providers and an unknown number of organizations that have volunteers who work with children, including churches, schools, sporting organizations, scouting programs, and many others. None of the affected entities appear to be disproportionately affected.

The Code of Virginia requires DPB to assess whether an adverse impact may result from the proposed regulation.⁵ 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. As noted, removing the notarization requirement is expected to produce savings for the applicants in terms of time, travel, and possible fee expenses and expedite the application process. Although some notaries may be charging a small fee for services, a notarization almost always can be secured at one's bank or financial institution for free. Thus, no adverse impact appears to be indicated.

Small Businesses⁶ Affected.⁷ The proposed amendments do not adversely affect small businesses.

Localities⁸ Affected.⁹ The proposed amendments do not introduce costs for local governments.

Projected Impact on Employment. The removal of the notary requirement is expected to free some time for the applicants, but whether such time savings would have any impact on employment is unknown.

Effects on the Use and Value of Private Property. The proposed changes are not expected to affect the use and value of private property or the 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 https://townhall.virginia.gov/l/ViewStage.cfm?stageid=9618

³DSS states that a notary official may charge an applicant up to $5 per request.

⁴86.5=180,000 hours/(40 hours a week*52 weeks)

⁵Pursuant 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.

⁶Pursuant 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."

⁷If 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.

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

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

Summary:

The amendments remove the notary requirement for the consent an individual signs requesting a search of the Central Registry System (CRS) to determine that an individual has no founded case of child abuse or neglect. The purpose of the amendments is to expedite searches by the Central Virginia Child Abuse and Neglect Central Registry Unit of CRS to make it less burdensome for individuals who wish to provide services or care to children through employment, foster care, adoption, or volunteer opportunities.

22VAC40-705-160. Releasing information.

A. In the following instances of mandatory disclosure the local department shall release child protective services information. The local department may do so without any written release.

1. Report to attorney for the Commonwealth and law enforcement pursuant to § 63.2-1503 D of the Code of Virginia.

2. Report to the regional medical examiner's office pursuant to § 63.2-1503 E of the Code of Virginia.

3. Any individual, including an individual against whom allegations of child abuse or neglect were made, may exercise his rights under the Government Data Collection and Dissemination Practices Act (§ 2.2-3800 et seq. of the Code of Virginia) to access personal information related to himself that is contained in the case record including, with the individual's notarized signed consent, a search of the Central Registry.

4. When the material requested includes personal information about other individuals, the local department shall be afforded a reasonable time in which to redact those parts of the record relating to other individuals.

5. Pursuant to the Child Abuse Prevention and Treatment Act, as amended (42 USC § 5101 et seq.), and federal regulations (45 CFR Part 1340), the local department shall provide case-specific information about child abuse and neglect reports and investigations to citizen review panels when requested.

6. Pursuant to the Child Abuse Prevention and Treatment Act, as amended (42 USC § 5101 et seq.), the department shall develop guidelines to allow for public disclosure in instances of child fatality or near fatality.

7. An individual's right to access information under the Government Data Collection and Dissemination Practices Act is stayed during criminal prosecution pursuant to § 63.2-1526 C of the Code of Virginia.

8. The local department shall disclose and release to the United States Armed Forces Family Advocacy Program child protective services information as required pursuant to 22VAC40-705-140.

9. Child protective services shall, on request by the Division of Child Support Enforcement, supply information pursuant to § 63.2-103 of the Code of Virginia.

10. The local department shall release child protective services information to a court appointed special advocate pursuant to § 9.1-156 A of the Code of Virginia.

11. The local department shall release child protective services information to a court-appointed guardian ad litem pursuant to § 16.1-266 G of the Code of Virginia.

12. In any case properly before a court having jurisdiction, if the court orders the local department to disclose information from a child abuse or neglect case record, the local department must either comply with the order if permitted under federal and state law or appeal the order if such disclosure is contrary to federal and state law.

B. The local department may use discretion in disclosing or releasing child protective services case record information, investigative and ongoing services to parties having a legitimate interest when the local department deems disclosure to be in the best interest of the child. The local department may disclose such information without a court order and without a written release pursuant to § 63.2-105 of the Code of Virginia.

C. Prior to disclosing information to any individuals or organizations, and to be consistent with § 63.2-105 of the Code of Virginia, the local department must consider the factors described in subdivisions 1, 2, and 3 of this subsection as some of the factors necessary to determine whether a person has a legitimate interest and the disclosure of information is in the best interest of the child:

1. The information will be used only for the purpose for which it is made available;

2. Such purpose shall be related to the goal of child protective or rehabilitative services; and

3. The confidential character of the information will be preserved to the greatest extent possible.

D. In cases of abuse or neglect in which the person who is the subject of the founded report or complaint has appealed the finding and has submitted a written request for the local department's records in accordance with § 63.2-1526 of the Code of Virginia, the local department shall not disclose or release to such person the following information: (i) the name of the person reporting incidents of child abuse or neglect; (ii) any information that may endanger the well-being of a child if such information or records are disclosed or released; (iii) information that pertains to the identity of a collateral witness or any other person if such disclosure may endanger life or safety; or (iv) information that is otherwise prohibited from being disclosed or released by state or federal law or regulation.

E. In all complaints or reports that are being investigated jointly with law enforcement, the local department shall release child protective services information in accordance with the following:

1. Pursuant to § 63.2-1516.1 B of the Code of Virginia, no information in the possession of the local department from such joint investigation shall be released by the local department prior to the conclusion of the criminal investigation except as authorized by the investigating law-enforcement officer, the law-enforcement officer's supervisor, or the local attorney for the Commonwealth.

2. Pursuant to § 63.2-1503 D of the Code of Virginia, the local department shall provide the attorney for the Commonwealth and the local law-enforcement agency with the information and records of the local department related to the investigation of the complaint, including records related to any complaints of abuse or neglect involving the victim or the alleged abuser or neglector, and information or records pertaining to the identity of the person who reported the complaint of abuse or neglect.

F. Pursuant to §§ 63.2-1505 B and 63.2-1506 B of the Code of Virginia, the local department, upon request, must disclose to the child's parent or guardian the location of the child, provided that:

1. The investigation or family assessment has not been completed;

2. The parent or guardian requesting disclosure of the child's location has not been the subject of a founded report of child abuse or neglect;

3. The parent or guardian requesting disclosure of the child's location has legal custody of the child and provides to the local department any records or other information necessary to verify such custody;

4. The local department is not aware of any court order and has confirmed with the child's other parent or guardian or other person responsible for the care of the child that no court order has been issued that prohibits or limits contact by the parent or guardian requesting disclosure of the child's location with the child, the child's other parent or guardian or other person responsible for the care of the child, or any member of the household in which the child is located; and

5. Disclosure of the child's location to the parent or guardian will not compromise the safety of the child, the child's other parent or guardian, or any other person responsible for the care of the child.

22VAC40-705-170. Access to Central Registry.

A. The department will complete a search of the Central Registry upon request by a local department, upon receipt of a notarized signature of the individual whose name is being searched authorizing release of such information or a court order specifying a search of the Central Registry.

B. When the name being searched is found in the Central Registry, the department shall contact the local department responsible for the investigation to verify the information.