Title of Regulation: 22VAC40-730. Investigation of Child Abuse and Neglect in Out of Family Complaints (amending 22VAC40-730-10, 22VAC40-730-20, 22VAC40-730-30, 22VAC40-730-40, 22VAC40-730-60, 22VAC40-730-70, 22VAC40-730-80, 22VAC40-730-90, 22VAC40-730-100, 22VAC40-730-110, 22VAC40-730-115, 22VAC40-730-130).

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

Public Hearing Information: No public hearings are scheduled.

Public Comment Deadline: December 21, 2012.

Agency Contact: Mary Walter, Child Protective Services Consultant, Department of Social Services, Division of Family Services, 801 East Main Street, 11th Floor, Richmond, VA 23219, telephone (804) 726-7569, FAX (804) 726-7499, TTY (800) 828-1120, or email mary.walter@dss.virginia.gov.

Basis: Section 63.2-217 of the Code of Virginia authorizes the State Board of Social Services to promulgate regulations to carry out the administration of social services in the Commonwealth. Sections 63.2-1506, 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: As a result of a review of 22VAC40-730, Investigation of Child Abuse and Neglect in Out of Family Complaints, inconsistencies were identified with definitions in 22VAC40-705, Child Protective Services, which sets out the main requirements of CPS processes. Proposed changes to 22VAC40-730 provide technical amendments that are necessary to ensure conformity in definitions and content between CPS regulations providing for the investigation of child abuse and neglect. Conformity across CPS regulations is essential for consistency in critical decisions involving the health, safety, and welfare of children and families involved in the CPS process. The goal of updating definitions and correcting inconsistencies is to provide clarity for local departments of social services when conducting investigations of child abuse and neglect in out of family complaints.

Substance: Substantive changes to the regulation include: (i) incorporating by reference the definitions of Child Protective Services regulation 22VAC40-705; (ii) eliminating duplicate definitions; (iii) clarifying existing definitions to reflect updated terminology; and (iv) conforming language throughout the regulation to reflect updated definitions as appropriate. Because the definitions and requirements of 22VAC40-705 must be followed in out of family CPS complaints, conformity in definitions and content between the two regulations is essential to maintain consistency across regulations for the investigation of child abuse and neglect.

Issues: The primary advantage of this proposed regulatory action is to promote consistency for local departments of social services authorized by the Code of Virginia to conduct CPS investigations in out of family complaints; thus, providing for consistency in investigations involving alleged abusers and victims and families and proper coordination with other regulatory authorities. This regulatory action poses no disadvantages to the public or the Commonwealth.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. The State Board of Social Services (Board) proposes to amend its regulations that govern the investigation of child abuse and neglect in out of family complaints to make definitions and regulatory language consistent between these regulations and regulations that govern child protective services (CPS) (22VAC40-705).

Result of Analysis. Benefits likely outweigh costs for all proposed changes.

Estimated Economic Impact. Current language in the Board's regulations that govern the investigation of child abuse and neglect in out of family complaints is stylistically, but not substantively, inconsistent with the language in its CPS regulations. Since all child abuse complaints must be investigated in a manner that is consistent with the CPS regulations, the Board proposes to modify definitions and regulatory language in these proposed regulations so that they mirror the CPS regulations. For instance, the Board proposes to change every reference to "complain" to read "valid complaint" instead and propose to use the word "department" instead of "agency" because that is the phrasing used in the CPS regulations.

All of the changes that are proposed for these regulations will harmonize the language used with that in the CPS regulations but will not change any investigatory practices. Consequently, no affected entity is likely to incur any costs on account of these regulatory changes. The clarity that these changes bring will, however, benefit individuals who found the language differences between the regulations confusing.

Businesses and Entities Affected. These proposed regulatory changes will affect all 120 local Departments of Social Services.

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

Projected Impact on Employment. This proposed regulatory action is unlikely to have any effect on employment in the Commonwealth.

Effects on the Use and Value of Private Property. These proposed regulatory changes are unlikely to affect the use or value of private property in the Commonwealth.

Small Businesses: Costs and Other Effects. No small business is likely to incur any costs on account of this regulatory action.

Small Businesses: Alternative Method that Minimizes Adverse Impact. No small business is likely 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 Economic Impact Analysis: The Department of Social Services concurs with the economic impact analysis prepared by the Department of Planning and Budget.

Summary:

The State Board of Social Services proposes to amend its regulation governing the investigation of child abuse and neglect in out of family complaints to make definitions and regulatory language consistent between this regulation and the regulation that governs child protective services (22VAC40-705).

Part I
Definitions

22VAC40-730-10. Definitions.

The In addition to the definitions contained in 22VAC40-705-10, the following words and terms when used in conjunction with this chapter shall have the following meanings unless the context clearly indicates otherwise:

"Caretaker," for the purpose of this chapter, means any individual determined to have the responsibility of caring for a child.

"Child day center" means a child day program operated in other than the residence of the provider or any of the children in care, responsible for the supervision, protection, and well-being of children during absence of a parent or guardian, as defined in § 63.2-100 of the Code of Virginia. For the purpose of this chapter, the term shall be limited to include only state licensed child day centers and religiously exempted child day centers.

"Child Protective Services" means the identification, receipt and immediate investigation of complaints and reports of child abuse and neglect for children under 18 years of age. It also includes documenting, arranging for, and providing social casework and other services for the child, his family, and the alleged abuser.

"Complaint" means a valid report of suspected child abuse or neglect which must be investigated by the local department of social services.

"Department" means the Department of Social Services.

"Disposition" means the determination of whether abuse or neglect occurred.

"Child day program" means a regularly operating service arrangement for children where, during the absence of a parent or guardian, a person or organization has agreed to assume responsibility for the supervision, protection, and well-being of children as defined in § 63.2-100 of the Code of Virginia.

"Facility" means the generic term used to describe the setting in out of family abuse or neglect and for the purposes of this regulation includes schools (public and private), private or state-operated hospitals or institutions, child day centers programs, state regulated family day homes, and residential facilities.

"Facility administrator" means the on-site individual responsible for the day-to-day operation of the facility.

"Family day home," for the purpose of this chapter, means a child day program as defined in § 63.2-100 of the Code of Virginia where the care is provided in the provider's home and is state regulated; locally approved or regulated homes are not included in this definition.

"Founded" means that a review of the facts shows by a preponderance of the evidence that child abuse and/or neglect has occurred. A determination that a case is founded shall be based primarily on first source evidence; in no instance shall a determination that a case is founded be based solely on indirect evidence or an anonymous complaint.

"Local agency" means the local department of social services responsible for conducting investigations of child abuse or neglect complaints as per § 63.2-1503 of the Code of Virginia.

"Participate" means to take part in the activities of the joint investigation as per a plan for investigation developed by the CPS worker with the facility administrator or regulatory authority or both.

"Physical plant" means the physical structure/premises of the facility.

"Regulatory authority" means the department or state board that is responsible under the Code of Virginia for the licensure or certification of a facility for children.

"Residential facility" means a publicly or privately owned facility, other than a private family home, where 24-hour care, maintenance, protection, and guidance is provided to children separated from their parents or legal guardians, that is subject to licensure or certification pursuant to the provisions of the Code of Virginia and includes, but is not limited to, group homes, group residences, secure custody facilities, self-contained residential facilities, temporary care facilities, and respite care facilities.

Part II
Policy

Article 1
Out of Family Investigation Policy

22VAC40-730-20. General.

Complaints Valid complaints of child abuse or neglect involving caretakers in out of family settings are for the purpose of this chapter valid complaints in state licensed and religiously exempted child day centers programs, regulated family day homes, private and public schools, group residential facilities, hospitals, or institutions. These valid complaints shall be investigated by qualified staff employed by local departments of social services or welfare.

Staff shall be determined to be qualified based on criteria identified by the department. All staff involved in investigating a valid complaint must be qualified.

This regulation is limited in scope to the topics contained herein. 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.

In addition to the authorities and the responsibilities specified in department policy for all child protective services investigations, the policy for investigations in out of family settings is set out in 22VAC40-730-30 through 22VAC40-730-130.

22VAC40-730-30. Initial Safety assessment.

If the valid complaint information received is such that the local agency department is concerned for the child's immediate safety, contact must be initiated with the facility administrator immediately to ensure the child's safety. If, in the judgment of the child protective services/CPS worker, the situation is such that the child or children should be immediately removed from the facility, the parent or parents, guardian or agency holding custody shall be notified immediately to mutually develop a safety plan which addresses the child's or children's immediate safety needs.

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

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

1. For valid complaints in state regulated facilities and religiously exempted child day centers programs, the local agency department shall contact the regulatory authority and share the valid complaint information. The regulatory authority will appoint a staff person to participate in the investigation to determine if there are regulatory concerns.

2. The CPS worker assigned to investigate 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 policy requirements to be met by each party as well as the impact the investigation will have on the facility's staff, the victim child or children, and the other children at the facility.

22VAC40-730-60. Contact with CPS regional coordinator.

A. The local agency department shall contact the department's regional CPS coordinator as soon as is practical after the receipt of the valid complaint. The regional coordinator will review the procedures to be used in investigating the valid complaint and provide any case planning assistance the local worker may need.

B. The regional coordinator shall be responsible for monitoring the investigative process and shall be kept informed of developments which substantially change the original case plan.

C. At the conclusion of the investigation the local agency department shall contact the department's regional CPS coordinator to review the case prior to notifying anyone of the disposition. The regional coordinator shall review the facts gathered and policy requirements for determining whether or not abuse or neglect occurred. However, the statutory authority for the disposition rests with the local agency department. This review shall not interfere with the requirement to complete the investigation in the legislatively mandated time frame.

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

A. The CPS worker shall initiate contact with the facility administrator or designee at the onset of the investigation.

B. The CPS worker shall inform the facility administrator or his designee of the details of the valid complaint. When the administrator or designee chooses to participate in the joint investigation, he 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, etc. If there is no superior, the CPS worker may use discretion in sharing information with the administrator.

C. 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. 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.

22VAC40-730-80. Contact with the alleged victim child.

The CPS worker shall interview the alleged victim child and shall determine along with a regulatory staff person or facility administrator or designee who may be present in the interview. Where there is an apparent conflict of interest, the CPS agency local department shall use discretion regarding who is to be included in the interview.

22VAC40-730-90. Contact with the alleged abuser or neglector.

A. The CPS worker shall interview the alleged abuser or neglector according to a plan developed with the regulatory staff person, facility administrator, or designee. Where there is an apparent conflict of interest, the CPS agency local department shall use discretion regarding who is to be included in the interview. At the onset of the initial interview with the alleged abuser or neglector, the CPS worker shall notify him in writing of the general nature of the valid complaint and the identity of the alleged victim child to avoid any confusion regarding the purpose of the contacts.

B. The alleged abuser or neglector has the right to involve a representative of his choice to be present during his interviews.

22VAC40-730-100. Contact with collateral children.

The CPS worker shall interview nonvictim children as collaterals if it is determined that they may have information which would help in determining the finding in the valid complaint. Such contact should be made with prior consent of the nonvictim child's parent, guardian or agency holding custody. If the situation warrants contact with the nonvictim child prior to such consent being obtained, the parent, guardian or agency holding custody should be informed as soon as possible after the interview takes place.

22VAC40-730-110. Report the findings.

Written notification of the findings shall be submitted to the facility administrator or designee and the regulatory staff person involved in the investigation, if applicable, at the same time the alleged abuser or neglector is notified.

If the facility administrator is the abuser or neglector, written notification of the findings shall be submitted to his superior if applicable.

22VAC40-730-115. Procedures for conducting an investigation of a teacher, principal or other person employed by a local school board or employed in a nonresidential school operated by the Commonwealth.

A. Each local department of social services and local school division shall adopt a written interagency agreement as a protocol for investigating child abuse and neglect reports against school personnel. The interagency agreement shall be based on recommended procedures for conducting investigations developed by the Departments of Education and Social Services.

B. These procedures for investigating school personnel amplify or clarify other Child Protection Services (CPS) regulations.

1. In determining the validity of a report of suspected abuse or neglect pursuant to § 63.2-1511 of the Code of Virginia, the local department must consider whether the school employee used reasonable and necessary force. The use of reasonable and necessary force does not constitute a valid report.

2. The local department shall conduct a face-to-face interview with the person who is the subject of the valid complaint or report.

3. At the onset of the initial interview with the alleged abuser or neglector, the local department shall notify him in writing of the general nature of the valid complaint and the identity of the alleged child victim regarding the purpose of the contacts.

4. The written notification shall include the information that the alleged abuser or neglector has the right to have an attorney or other representative of his choice present during his interviews. However, the failure by a representative of the Department of Social Services to so advise the subject of the valid complaint shall not cause an otherwise voluntary statement to be inadmissible in a criminal proceeding.

5. If the local department determines that the alleged abuser's actions were within the scope of his employment and were taken in good faith in the course of supervision, care or discipline of students, then the standard for determining a founded finding of abuse or neglect is whether such acts or omissions constituted gross negligence or willful misconduct.

6. Written notification of the findings shall be submitted to the alleged abuser or neglector. The notification shall include a summary of the investigation and an explanation of how the information gathered supports the disposition.

7. The written notification of the findings shall inform the alleged abuser or neglector of his right to appeal.

8. The written notification of the findings shall inform the alleged abuser or neglector of his right to review information about himself in the record with the following exceptions:

a. The identity of the person making the report.

b. Information provided by any law-enforcement official.

c. Information that may endanger the well-being of the child.

d. The identity of a witness or any other person if such release may endanger the life or safety of such witness or person.

No information shall be released by the local department in cases that are being criminally investigated unless the release is authorized by the investigating law-enforcement officer or his supervisor or the local attorney for the Commonwealth.

Article 2
Local Staff Qualifications in Out of Family Investigations

22VAC40-730-130. Requirements.

A. In order to be determined qualified to conduct investigations in out of family settings, local CPS staff workers shall meet minimum education standards established by the department including:

1. Documented competency in designated general knowledge and skills and specified out of family knowledge and skills; and

2. Completion of out of family policy training.

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