TITLE 22. SOCIAL SERVICES

STATE BOARD OF SOCIAL SERVICES

Fast-Track Regulation

Title of Regulation: 22VAC40-730. Investigation of Child Abuse and Neglect in Out of Family Complaints (amending 22VAC40-730-20, 22VAC40-730-40, 22VAC40-730-70, 22VAC40-730-130).

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

Public Hearing Information: No public hearing is currently scheduled.

Public Comment Deadline: May 7, 2025.

Effective Date: May 22, 2025.

Agency Contact: Nicole Shipp, Department of Social Services, 801 East Main Street, Richmond, VA 23229, telephone (804) 726-7574, or email e.shipp@dss.virginia.gov.

Basis: Section 63.2-217 of the Code of Virginia gives the State Board of Social Services the responsibility to promulgate rules and regulations to administer social services in the Commonwealth under Chapter 15 (§ 63.2-1500 et seq.) of Title 63.2 of the Code of Virginia. Sections 63.2-1505, 63.2-1511, and 63.2-1516.1 of the Code of Virginia provide additional legal mandates for Child Protective Services (CPS) investigations in out of family settings.

Purpose: This regulatory action is essential to protect the health, safety, and welfare of citizens because it clarifies and streamlines provisions that govern the investigation of child abuse and neglect in out of family settings.

Rationale for Using Fast-Track Rulemaking Process: This action is considered noncontroversial and appropriate for the fast-track rulemaking process because the changes being made are simple and intended to update and clarify language in the regulation.

Substance: This action clarifies language in Investigation of Child Abuse and Neglect in Out of Family Complaints (22VAC40-730) and reduces duplication. Specifically, the amendments remove (i) requirements in 22VAC40-730-20 regarding the qualifications for staff to conduct an investigation, which is redundant to 22VAC40-730-130; (ii) repetitive language regarding communication between CPS and other agencies in 22VAC40-730-40 and between CPS and facility administrators in 22VAC40-730-70; and (iii) a requirement that the Department of Social Services and each local department of social services maintain a roster of personnel qualified to conduct out of family investigations.

Issues: The advantage to the public and local departments of social services (LDSS) is that the amendments clarify existing language, which is used when an LDSS conducts investigations of child abuse or neglect in out of family settings. There are no disadvantages to the public or the Commonwealth.

Department of Planning and Budget 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 and Executive Order 19. The analysis presented represents DPB's best estimate of the potential economic impacts as of the date of this analysis.¹

Summary of the Proposed Amendments to Regulation. As a result of a periodic review of this regulation, the State Board of Social Services (board) proposes amendments that would remove duplicative or unnecessary language.²

Background. This regulation governs the investigation by local departments of social services (LDSS) of child abuse and neglect complaints in out of family (OOF) settings. The Department of Social Services (DSS) reports that OOF in this context includes public schools, private schools for children with disabilities, child day programs, foster homes, children residential facilities, children detention homes and correctional facilities, and children medical residential facilities. Most of these entities are licensed or operated by other state agencies, such as the Department of Health, the Department of Behavioral Health and Developmental Services, the Department of Education, or the Department of Juvenile Justice. The regulation on Child Protective Services (22VAC40-705) contains the bulk of the regulatory requirements and definitions regarding complaints of child abuse and neglect, whereas this regulation (22VAC40-730) is specific to complaints in OOF settings. DSS reports that in fiscal year 2024, 8,872 reports of child abuse and neglect resulted in an investigation by Child Protective Services (CPS), and that 1,585 of those investigations were conducted in OOF settings. The board proposes to strike language that it has determined is redundant. Specifically, the board proposes to remove (i) requirements in 22VAC40-730-20 regarding the qualifications for staff to conduct an investigation, since it is already covered in 22VAC40-730-130; (ii) repetitive language regarding communication between CPS and other agencies (in 22VAC40-730-40) and between CPS and facility administrators (in22VAC40-730-70); and (iii) a requirement that DSS and each LDSS maintain a roster of personnel qualified to conduct out of family investigations, since they can do so without a regulatory requirement.

Estimated Benefits and Costs: Since the proposed amendments would remove redundant language, but not change requirements overall, they are not expected to generate any benefits or costs.

Businesses and Other Entities Affected. The proposed amendments would affect readers of the regulation, including the 120 LDSS, other state agencies with licensing or regulatory authority over children facilities, and facilities involved in an out of family investigation. The Code of Virginia requires DPB to assess whether an adverse impact may result from the proposed regulation.³ An adverse impact is indicated if there is any increase in net cost or reduction in net benefit for any entity, even if the benefits exceed the costs for all entities combined.⁴ The proposed amendments remove redundant language. Thus, no adverse impact is indicated.

Small Businesses⁵ Affected.⁶ The proposed amendments do not appear to adversely affect small businesses.

Localities⁷ Affected.⁸ The proposed amendments do not disproportionately affect particular localities or affect costs for local governments.

Projected Impact on Employment. The proposed amendments are not expected to affect total employment.

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

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¹ Section 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 See https://townhall.virginia.gov/L/ViewPReview.cfm?PRid=2481.

³ Pursuant 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.

⁴ 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. As a result, DPB has adopted a definition of adverse impact that assesses changes in net costs and benefits for each affected Virginia entity that directly results from discretionary changes to the regulation.

⁵ Pursuant 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."

⁶ If 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.

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.

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

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

Summary:

As a result of a periodic review, the amendments remove (i) requirements in 22VAC40-730-20 regarding the qualifications for staff to conduct an investigation, which is redundant to 22VAC40-730-130; (ii) repetitive language regarding communication between Child Protective Services (CPS) and other agencies in 22VAC40-730-40 and between CPS and facility administrators in 22VAC40-730-70; and (iii) a requirement that the Department of Social Services and each local department of social services maintain a roster of personnel qualified to conduct out of family investigations, which can be done without regulatory requirement.

22VAC40-730-20. General.

For the purpose of this chapter, valid complaints of child abuse or neglect involving complaints in a facility or foster home shall be investigated by qualified staff employed by local departments of social services.

Staff shall be determined to be qualified based on completion of an out of family training course as approved by the department.

This regulation is limited in scope to the topics contained in this chapter. All issues regarding investigations, findings, and appeals are found in Child Protective Services, (22VAC40-705,) and as such are cross referenced and incorporated into and apply to out of family cases to the extent that they are not inconsistent with this regulation.

22VAC40-730-40. Involvement of regulatory agencies.

The authority of the local department to investigate valid complaints of alleged child abuse or neglect in facilities or foster homes overlaps with the authority of the public agencies that have regulatory responsibilities for these facilities to investigate alleged violations of standards.

1. For valid complaints, the local department shall contact the appropriate regulatory authority and share the complaint information. The regulatory authority will appoint a staff person to participate in the investigation to determine if there are regulatory concerns.

2. The assigned child protective services (CPS) worker and the appointed regulatory staff person will discuss their preliminary joint investigation plan.

a. The CPS worker and the regulatory staff person shall review their respective needs for information and plan the investigation based on when these needs coincide and can be met with joint interviews or with information sharing.

b. The investigation plan must keep in focus the requirements to be met by the CPS worker and regulatory authority as well as the impact the investigation will have on the facility's staff, the victim child, and the other children at the facility.

22VAC40-730-70. Contact with the facility administrator.

A. The child protective services (CPS) worker shall initiate contact with the facility administrator or designee at the onset of the investigation.

B. A. The child protective services (CPS) worker shall inform the facility administrator or designee of the details of the valid complaint. When the administrator or designee chooses to participate in the joint investigation, he the administrator or designee will be invited to participate in developing the plan for investigation, including decisions about who is to be present in interviews. If the administrator or designee is the alleged abuser or neglector, this contact should be initiated with the individual's superior, which may be the board of directors, or if there is no superior, the CPS worker may use discretion in sharing information with the administrator so long as such disclosure is consistent with and does not conflict with law or regulation.

C. B. Arrangements are to be made for:

1. Necessary interviews;

2. Observations, including the physical plant; and

3. Access to information, including review of pertinent policies and procedures.

D. C. The CPS worker shall keep the facility administrator or designee apprised of the progress of the investigation. In a joint investigation with a regulatory staff person, either party may fulfill this requirement.

22VAC40-730-130. Requirements.

A. In order to be determined qualified to conduct investigations in out of family settings, local child protective services (CPS) workers shall meet minimum education standards established by the department including completion of an out of family training course as approved by the department.

B. The department and each local department shall maintain a roster of personnel determined qualified to conduct these out of family investigations.