Title of Regulation: 6VAC35-140. Standards for Juvenile Residential Facilities (adding 6VAC35-140-46).

Statutory Authority: §§16.1-309.9, 66-10 and 66-25.1 of the Code of Virginia.

Public Hearing Information: No public hearings are scheduled.

Public Comments: Public comments may be submitted until November 12, 2008.

Effective Date: December 12, 2008.

Agency Contact: Janet P. VanCuyk, Legislative and Regulatory Coordinator, Department of Juvenile Justice, 700 E. Franklin Street, Richmond, VA 23218-1110, telephone (804) 371-4097, FAX (804) 371-0773, or email janet.vancuyk@djj.virginia.gov.

Basis: The Board of Juvenile Justice is entrusted with general authority to promulgate regulations by § 66-10 of the Code of Virginia, which states the board may "promulgate such regulations as may be necessary to carry out the provisions of this title and other laws of the Commonwealth administered by the Director or the Department." Additional statutory provisions address the board’s responsibility to promulgate regulations governing residential facilities. These are §§ 16.1-309.9, governing facilities receiving funding through the Virginia Juvenile Community Crime Control Act (Chapter 11, Article 12.1 of Title 16.1 of the Code of Virginia); 16.1-322.5, governing local or regional detention homes; and 66-24, governing community group homes and other residential facilities.

Purpose: Juvenile residential facilities regulated by the Board of Juvenile Justice currently must meet the requirements of the Standards for Interdepartmental Regulation of Children’s Residential Facilities (22VAC42-11) and the Standards for Juvenile Residential Facilities (6VAC35-140). 22VAC42-11-830 of the Standards for Interdepartmental Regulation of Children’s Residential Facilities (22VAC42-11) regulates the staff supervision of residents in all children’s residential facilities. This provision specifies that "The Board of Juvenile Justice shall determine the supervision ratios for facilities regulated by the Department of Juvenile Justice." No regulations or policies adopted by the Board of Juvenile Justice set the required staffing ratio for the nonsecure facilities it regulates.

Prior to December 27, 2007, when the Standards for Interdepartmental Regulation of Children’s Residential Facilities were amended, all nonsecure children’s residential facilities were subject to the same staffing ratio, which required each facility to have one staff person supervising every 10 residents during scheduled awake hours. As amended, the Standards for Interdepartmental Regulation of Children’s Residential Facilities (22VAC42-11), 6VAC42-11-830 provides that facilities regulated by the Departments of Education, Social Services, and Mental Health, Mental Retardation, and Substance Abuse Services must maintain a staffing ratio of one staff person for each eight residents. 22VAC42-11-830 specifically excludes facilities regulated by the Board of Juvenile Justice and provides that the Board of Juvenile Justice shall determine the applicable supervision ratios. This exclusion applies to both secure and nonsecure facilities regulated by the board.

6VAC35-140-545 sets the staffing pattern for secure facilities regulated by the Board of Juvenile Justice. No regulations or policies adopted by the Board of Juvenile Justice set the required staffing ratio for the nonsecure facilities it regulates. This regulation is essential to protect the health, safety, or welfare of both juveniles who reside in juvenile residential facilities and the staff who work there. Absent this regulation, an operator of a nonsecure residential facility regulated by the Board of Juvenile Justice may elect to set a higher staffing ratio that could potentially adversely affect the care of the residents and result in the residents’ needs being unmet. This proposed regulatory action would close that gap.

Rationale for Using Fast-Track Process: This regulation is being promulgated through the fast-track process because it is expected to be noncontroversial as the proposed section: (i) adopts the prior regulatory requirements (which were required of these facilities before the December 2007 amendments to the Standards for Interdepartmental Regulation of Children’s Residential Facilities); (ii) makes current practice a regulatory requirement (as the affected facilities have continued to operate under the prior regulatory requirement); (iii) corrects a gap in the current regulatory scheme; and (iv) results in continued uniform staffing patterns in these facilities throughout the Commonwealth.

Under the current regulatory scheme, there is a gap in which no staffing ratio has been set for nonsecure residential facilities regulated by the Board of Juvenile Justice. The proposed section would adopt the same language governing the staffing pattern for secure residential facilities regulated by the Board of Juvenile Justice and apply it to the nonsecure juvenile residential facilities regulated by the board.

This staffing ratio is also consistent with the ratio required by the Standards for Interdepartmental Regulation of Children’s Residential Facilities (22VAC42-11) prior to its amendment in December 2007. The proposed staffing ratio is different from the general rule currently governing residential programs regulated by the Departments of Education, Social Services, and Mental Health, Mental Retardation, and Substance Abuse Services. However, 22VAC42-11-830 of the Standards for the Interdepartmental Regulation of Children’s Residential Facilities allows each of these boards to, upon request of a provider, approve a ratio that allows a higher number of residents to be supervised by one staff if the requested staffing ratio will not adversely affect the care of the residents and if the residents’ needs will continue to be met on an individual as well as a group basis. The department asserts that the requested staffing ratio will not adversely affect the care of the residents and the residents’ needs will continue to be met on an individual as well as a group basis and thus expects this regulatory action to be noncontroversial.

Substance: This action will create a new section (6VAC35-140-46) in the Board of Juvenile Justice’s Standards for Juvenile Residential Facilities (6VAC35-140). The proposed section adopts the prior regulatory requirements (which were required of these facilities before the December 2007 amendments to the Standards for Interdepartmental Regulation of Children’s Residential Facilities), will make current practice a regulatory requirement, and will result in continued uniform application in these facilities throughout the Commonwealth.

This new section sets the staffing pattern for nonsecure facilities regulated by the board. The amendment sets the staffing ratio at one staff for 10 residents during scheduled awake hours (except independent living programs where it is set at one to 15) and one staff for every 16 residents during scheduled sleep hours. Additionally, when the residents are sleeping, at least one staff member must be in each building and on each floor where residents sleep (except independent living programs).

Issues: 22VAC42-11-830 of the Standards for Interdepartmental Regulation of Children’s Residential Facilities (22VAC42-11) provides that facilities regulated by the Departments of Education, Social Services, and Mental Health, Mental Retardation, and Substance Abuse Services must maintain a staffing ratio of one staff person for each eight residents. 22VAC42-11-830 specifically excludes facilities regulated by the Board of Juvenile Justice and provides the Board of Juvenile Justice shall determine the applicable supervision ratios. This exclusion applies to both secure and nonsecure facilities regulated by the board.

6VAC35-140-545 sets the staffing pattern for secure facilities regulated by the Board of Juvenile Justice. No regulations or policies adopted by the Board of Juvenile Justice set the required staffing ratio for nonsecure facilities it regulates. Thus, the proposed regulation is essential to protect the health, safety, or welfare of both juveniles who reside in juvenile residential facilities and the staff who work there. Absent this regulation, an operator of a nonsecure residential facility regulated by the Board of Juvenile Justice may elect to set a higher staffing ratio that could potentially adversely affect the care of the residents and result in the residents’ needs being unmet. This proposed regulatory action could close that gap.

Thus, the proposed provision is advantageous to the public because it provides additional protections for the health, safety, and welfare of the residents in juvenile residential facilities regulated by the Board of Juvenile Justice.

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. The Board of Juvenile Justice proposes to adopt staffing ratios for non-secure juvenile residential facilities.

Result of Analysis. The benefits likely exceed the costs for this proposed action.

Estimated Economic Impact. Prior to December, 2007, the Standards for Interdepartmental Regulation of Children’s Residential facilities set staffing ratios for non-secure juvenile residential facilities. Under Interdepartmental Regulations, most of these facilities maintained a staff to child ratio of at least one staff member for every ten children during hours when the children were awake. During sleeping hours, the general staff to child ratio had to be, at most, one to sixteen. Of the staff required during sleeping hours: 1) at least one staff member had to be on duty in each building where children were sleeping and 2) there had to be at least one staff member on duty on floors where children were sleeping for every thirty children on that floor.

Under pre-December 2007 Interdepartmental Regulations, independent living programs had different staffing ratio requirements. During waking hours independent living programs had to have at least one staff member on duty for every fifteen teenagers/young adults. There were no staffing requirements for independent living programs during traditional sleeping hours.

In December 2007 new Interdepartmental Regulations were promulgated that allowed the Board of Juvenile Justice to determine staffing ratios for its own facilities. The Board of Juvenile Justice now proposes to adopt staffing ratios that were set by pre-December 2007 Interdepartmental Regulations. These staffing ratios represent current practice so there will likely be no costs that will be accrued on account of these proposed standards. To the extent that any interested parties may have been unsure as to what staffing standards are, promulgating these standards will provide the benefit of clarity.

Businesses and Entities Affected. The Department of Juvenile Justice reports that this regulatory action will affect 29 non-secure juvenile residential facilities. Some of these facilities are private, for-profit operations and would, therefore, qualify as small businesses.

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 amendment adds a new section that sets the staffing pattern for nonsecure facilities regulated by the board. The amendment sets the staffing ratio at one staff for every 10 residents during scheduled awake hours (except independent living programs where it is set at one for every 15) and one staff for every 16 residents during scheduled sleep hours. Additionally, when the residents are sleeping, at least one staff member must be in each building and at least one staff member for every 30 residents must be on each floor where residents sleep (except independent living programs).

6VAC35-140-46. Staffing pattern.

A. During the hours that residents are scheduled to be awake, there shall be at least one child care staff member awake, on duty, and responsible for supervision of every 10 residents, or portion thereof, on the premises or participating in off-campus, facility-sponsored activities except that independent living programs shall have at least one child care staff member awake, on duty, and responsible for supervision of every 15 children on the premises or participating in off-campus, facility-sponsored activities.

B. During the hours that residents are scheduled to sleep there shall be no less than one child care staff member on duty and responsible for supervision of every 16 residents, or portion thereof, on the premises.

C. There shall be at least one child care staff member on duty and responsible for the supervision of residents in each building where residents are sleeping. This requirement does not apply to approved independent living programs.

D. On each floor where children are sleeping, there shall be at least one child care staff member awake and on duty for every 30 children or portion thereof.