Title of Regulation: 6VAC35-20. Regulations Governing the Monitoring, Approval, and Certification of Juvenile Justice Programs (amending 6VAC35-20-37).

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

Public Hearing Information: No public hearings are scheduled.

Public Comments: Public comments may be submitted until November 27, 2008.

Effective Date: December 12, 2008.

Agency Contact: Janet P. Van Cuyk, Regulatory Coordinator, Department of Juvenile Justice, P.O. Box 1110, Richmond, VA 23218-1110, telephone (804) 371-4097, FAX (804) 371-0773, or email janet.vancuyk@djj.virginia.gov.

Basis: Section 66-10 of the Code of Virginia establishes the general authority of the Board of Juvenile Justice to promulgate regulations. This action is necessary due to legislation enacted during the 2006 General Assembly session. Chapter 168 of the 2006 Virginia Acts of Assembly (SB 190) amends § 66-24 of the Code of Virginia relating to summary suspension of licenses or certificates for group homes and residential facilities under certain circumstances.

In 2005 the General Assembly gave the Commissioner of the Department of Mental Health, Mental Retardation and Substance Abuse Services Board authority to issue a summary suspension order for children’s group homes and residential facilities in cases of immediate and substantial threat to the health, safety, and welfare of residents.

In 2006 the Joint Subcommittee Studying Private Youth and Single Family Group Homes pursuant to HJR 685 (2005) recommended providing the same summary suspension order authority to the Superintendent of Public Instruction, the Director of the Department of Juvenile Justice, and the Commissioner of Social Services. Chapter 168 of the 2006 Virginia Acts of Assembly (SB 190) is intended to provide consistency in the legal authority for the interdepartmental licensure program for children’s residential facilities by giving all four departments the authority to address egregious circumstances while ensuring due process for the licensees or certificate holders. The legislation authorizes the Superintendent of Public Instruction, the Director of the Department of Juvenile Justice, and the Commissioner of Social Services to issue orders of summary suspension of a license or certificate to operate a group home or other residential facility for children in cases of immediate and substantial threat to the health, safety, and welfare of residents.

Purpose: The existing regulation prescribes how, in accordance with §§ 16.1-234, 16.1-309.1, 16.1-309.9 B, 16.1-309.10, 16.1-349, and 66-10 of the Code of Virginia, the Board and Department of Juvenile Justice will monitor and approve residential and nonresidential programs that are part of the Commonwealth's juvenile justice system. The emergency regulation adds procedures to the existing certification process that will enable the director to issue an order of summary suspension consistent with the statutory authority. The regulation is intended to provide the process for suspending the license or certificate to operate a group home or residential facility for children in cases of immediate and substantial threat to the health, safety, and welfare of the residents. The regulations will provide the basis for the department to act in accordance with legal protocols and ensure protections for the legal rights of all parties that may be affected by an action to suspend a license or certificate.

Rationale for Using Fast-Track Process: There are two reasons for using the fast track process for promulgating this regulation. First, this regulation is not a substantive change to the powers of the director and the State Board of Juvenile Justice. The actual authority of the director to take action against a licensee or a certificate holder dates back to 1992. As promulgated in 1992, former regulations 6VAC35-20-120 and 6VAC35-20-130 allowed the director to withdraw funding or prohibit placement of children in certified child residential facilities.

The current regulation was amended in 2003 (6VAC35-20-37). Current regulatory law provides the director with the authority to take immediate administrative action when there is evidence of any life, health, or safety violation or a program is not in substantial compliance with board-approved standards, policies, or the local plan for Virginia Juvenile Community Crime Control Act programs. The administrative action may include withholding funds; removing juveniles from the program; or placing the program on administrative probation for up to six months pending certification action by the board. Therefore, the proposed regulation is not a substantive change to the director’s authority. The proposed regulation clarifies the duties of the director; enhances the due process rights of the licensee or certificate holder; and clarifies the circumstances in which the director may issue a summary suspension order and the due process rights for the certificate or license holder for whom the summary order was issued against.

Second, this regulatory action is mandated by Chapter 168 of the 2006 Virginia Acts of Assembly (SB 190) and the proposed changes are consistent with the Code of Virginia amendments made by Chapter 168 of the 2006 Virginia Acts of Assembly. (See § 66-24 of the Code of Virginia.) Moreover, the proposed regulation addresses a fundamental due process notice issue by fixing a critical timing flaw in the law as passed by the General Assembly. As amended, § 66-24 of the Code of Virginia states that the summary order of suspension becomes effective at the time of issuance by the director. By law, the licensee then has three business days to appeal the decision from the date of issuance. However, § 66-24 requires that summary order of suspension be served on the licensee or its designee as soon as practicable thereafter by personal service and certified mail, return receipt requested, to the address of record of the licensee. The issue is that the timeframe for requesting an appeal could elapse before the licensee receives notice that the summary order of suspension has been issued and his right to appeal. The proposed regulation requires the director to provide notice of the issuance of the summary suspension immediately upon its issuance verbally and by facsimile.

Substance: The current regulation allows the director to take immediate administrative action whenever evidence is found of any life, health, or safety violation or a program is not in substantial compliance with board-approved standards, policies, or local plan for Virginia Juvenile Community Crime Control Act programs. Such administrative action may include withholding funds; removing juveniles from the program; or placing the program on administrative probation for up to six months pending certification action by the board.

The proposed regulation significantly improves the due process rights for licensees and certificate holders upon whom a summary order of suspension has been issued by expediting notice and ensuring that the licensee or certificate holder receives a summary of the information used as the basis for the summary order of suspension. The proposed regulation allows the director to issue a summary order of suspension of the license or certificate of any group home or residential facility when conditions or practices exist in the home or facility that pose an immediate and substantial threat to the health, safety, and welfare of the juveniles who are residents. As required by the Code of Virginia, the new language in the proposed regulation establishes that the summary order of suspension will take effect upon its issuance. The new language provides the process for serving notice and the timeframes for requesting and conducting an appeal.

Issues: These provisions are advantageous to the public because they provide additional protections for the health, safety, and welfare of individuals receiving services in licensed group homes and their families. The regulation implements legislative changes that allow the director to act promptly to suspend the operation of a licensed group home or residential facility when there is evidence of immediate and substantial risk to the residents.

The proposed regulations significantly improve the due process rights for licensees and certificate holders upon whom a summary order of suspension has been issued by expediting notice and ensuring that the licensee or certificate holder receives a summary of the information used as the basis for the summary order of suspension.

There are no known disadvantages to this regulation.

The Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. Pursuant to Chapter 168 of the 2006 Virginia Acts of the Assembly, the Board of Juvenile Justice (Board) proposes to set forth procedures for summarily suspending the license of any group home or residential facility that poses an "immediate and substantial threat to the health, safety and welfare of its residents."

Result of Analysis. The benefits likely exceed the costs for all proposed changes.

Estimated Economic Impact. During its 2006 session, the General Assembly passed legislation which gives the Director of the Department of Juvenile Justice (DJJ) the power to “issue a summary order of suspension of the license or certificate of any group home or residential facility” regulated by DJJ that is deemed an immediate threat to the health and safety of its residents. This legislation stipulates that any such suspension would be effective upon issuance. The legislation further stipulates that affected licensees (certificate holders) had to be served with notice of the suspension "as soon as practicable… by personal service and certified mail" and that such notice has to include the time, date and location of a hearing to determine if the suspension is appropriate. The legislation mandates that all suspension hearings occur no later than three days after the summary suspension order is issued.

Since the code section that this legislation amended has a clause that requires the affected agencies to promulgate regulations to implement the legislation’s provisions within 280 days of enactment, the Board promulgated emergency regulations. These emergency regulations did not differ in any substantive way from the specific requirements enumerated in Chapter 168. Emergency regulations became effective on August 1, 2007 and will expire on July 31, 2008.

The Board now proposes to promulgate regulations to replace the emergency regulations that will soon expire. The Board proposes new regulations that differ from expiring regulations in several substantive ways. The Board proposes to specifically list conditions and actions that would constitute an "immediate and substantial threat" to residents of affected facilities. A facility will be subject to summary suspension under these proposed regulations if, for example, facility staff are "permitting, aiding or abetting the commission of any illegal acts in… the facility" or are "engaging in conduct or practices that are in violation of statutes related to abuse or neglect of children." This change will very likely benefit regulated entities since it clearly lays out the behaviors that can trigger licensure suspension so that those behaviors can be avoided.

The Board also proposes several other changes to emergency regulations. The Board proposes to:

· Notify license holders of summary suspension, verbally and by facsimile, on the day the summary suspension is issued. Because notification by certified mail very likely would not get to a licensee before the three day hearing deadline, the Board believes that all parties would be better protected by regulations that require quicker notice than does the mandating legislation,

· Allow license holders to appear at the hearing by phone or video as well as in person and

· Explicitly promulgate language that recognizes the right of license holders to be represented by council and to present evidence and witnesses.

These changes will likely all benefit the licensees, who will have their procedural rights better preserved. These changes may also help to protect children; not only from the immanent harm that these regulations aim to stop, but also from the harm that can be caused by unnecessarily disrupting their placements.

While Chapter 168, these proposed regulations, and the emergency regulations that they will replace, all grant the Director of DJJ a new power to summarily suspend licensure, in practice the Director has been able to shut down shoddily run facilities since 1992. Other DJJ regulations dating from this time allow the Director to both refuse to fund licensed facilities and the power to refuse to place and/or remove children from placements for cause. Because the Director’s new power is duplicative in its effects, no regulated entity is likely to face any increased costs on account of this regulatory action.

Businesses and Entities Affected. The Department of Juvenile Justice reports that the Board currently certifies 26 community and family-oriented group homes. All of these are subject to the requirements of these proposed regulations.

Localities Particularly Affected. No locality will be particularly affected by this proposed regulatory action.

Projected Impact on Employment. This regulatory action will likely have no impact on employment in the Commonwealth.

Effects on the Use and Value of Private Property. This regulatory action will likely have no effect on the use or value of private property in the Commonwealth.

Small Businesses: Costs and Other Effects. Small businesses in the Commonwealth are unlikely to incur any costs on account of this regulatory action.

Small Businesses: Alternative Method that Minimizes Adverse Impact. Small businesses in the Commonwealth are unlikely to incur any costs on account of this regulatory action.

Real Estate Development Costs. This regulatory action will likely have no effect on real estate development costs in the Commonwealth.

Legal Mandate. 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 Administrative Process Act and Executive Order Number 36 (06). Section 2.2-4007.04 requires that such economic impact analyses include, but need not be limited to, the projected number of businesses or other entities to whom the regulation would apply, the identity of any localities and types of businesses or other entities particularly affected, the projected number of persons and employment positions to be affected, the projected costs to affected businesses or entities to implement or comply with the regulation, and the impact on the use and value of private property. Further, if the proposed regulation has adverse effect on small businesses, § 2.2-4007.04 requires that such economic impact analyses include (i) an identification and estimate of the number of small businesses subject to the regulation; (ii) the projected reporting, recordkeeping, and other administrative costs required for small businesses to comply with the regulation, including the type of professional skills necessary for preparing required reports and other documents; (iii) a statement of the probable effect of the regulation on affected small businesses; and (iv) a description of any less intrusive or less costly alternative methods of achieving the purpose of the regulation. The analysis presented above represents DPB’s best estimate of these economic impacts.

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

Summary:

The amendments allow the director to issue a summary order of suspension of the license or certificate of any group home or residential facility when conditions or practices exist in the home or facility that pose an immediate and substantial threat to the health, safety, and welfare of the juveniles who are residents.

The amendments establish that the summary order of suspension will take effect upon its issuance. The amendments provide the process for serving notice and the timeframes for requesting and conducting an appeal.

6VAC35-20-37. Director's authority to take immediate administrative action.

A. Nothing in this regulation shall be construed to limit the director's authority to take immediate administrative action in accordance with law whenever (i) evidence is found of any life, health, or safety violation or (ii) a program is not in substantial noncompliance compliance with board-approved standards, policies, or local plan for Virginia Juvenile Community Crime Control Act programs. Such administrative action may include, but is not limited to (a) withholding funds; (b) removing juveniles from the program; or (c) placing the program on administrative probation for up to six months pending certification action by the board. In taking such action, the department shall notify both the program, the administrative entity that the program reports to, and the board, in writing, of the reason for the administrative action, and the action the program must take to correct the situation.

B. In accordance with subsection A of this section and pursuant to the provisions set forth in § 66-24 of the Code of Virginia, the director may issue a summary order of suspension of the license or certificate of any group home or residential facility so regulated by the department.

1. Conditions or practices existing in the home or facility posing an immediate and substantial threat to the health, safety, and welfare of the residents include:

a. Violations of any provision of applicable laws or applicable regulations made pursuant to such laws;

b. Permitting, aiding, or abetting the commission of any illegal act in the regulated home or facility;

c. Engaging in conduct or practices that are in violation of statutes related to abuse or neglect of children;

d. Deviating significantly from the program or services for which a license or certificate was issued without obtaining prior written approval from the regulatory authority or failing to correct such deviations within the specified time; or

e. Engaging in a willful action or gross negligence that jeopardizes the care or protection of the resident.

2. The director shall immediately notify the licensee or certificate holder verbally and by facsimile of the issuance of the preliminary order of suspension and the opportunity for a hearing before the director or his designee within three working days of the issuance of the preliminary summary order of suspension.

a. The licensee or certificate holder may decline the opportunity for an appeal to the director or his designee.

b. Whenever an appeal is requested and a criminal charge is also filed against the appellant involving the same conduct, the appeal process shall be stayed until the criminal prosecution is completed. During such stay, the licensee's or certificate holder's right of access to the records of the department regarding the matter being appealed shall also be stayed. Once the criminal prosecution in court has been completed, the department shall advise the appellant in writing of his right to resume his appeal within the timeframes provided by law and regulation.

3. The licensee or certificate holder may appear before the director or his designee by personal appearance or by telephone. Any documents filed may be transmitted by facsimile and the facsimile and any signatures thereon shall serve, for all purposes, as an original document.

a. Upon request, the department shall provide the appellant a summary of the information used in making its determination. Information prohibited from being disclosed by state or federal law or regulation shall not be released. In the case of any information being withheld, the licensee or certificate holder shall be advised of the general nature of the information and the reasons, of privacy or otherwise, that it is being withheld.

b. The director or his designee shall preside over the appeal. With the exception of the director, no person whose regular duties include substantial involvement with the certification or licensing of the facilities shall preside over the appeal.

(1) The licensee or certificate holder may be represented by counsel.

(2) The licensee or certificate holder shall be entitled to present the testimony of witnesses, documents, factual data, arguments, or other submissions of proof.

4. The director or his designee shall have the authority to sustain, amend, or reverse the summary suspension order. The director or his designee shall notify the licensee or certificate holder in writing of the results of the appeal within 10 days of the hearing. Notification of the results of the appeal before the director or his designee shall be mailed certified with return receipt to the licensee or certificate holder.

a. The chair of the board must be immediately notified when the director issues a final order of summary suspension. In accordance with 6VAC35-20-65, the director shall report to the board no later than its next regularly scheduled meeting the action taken.

b. If the licensee or certificate holder is not satisfied, the licensee or certificate holder may dispute the noncompliance finding in accordance with 6VAC35-20-67.