Title of Regulation: 6VAC35-20. Regulations Governing the Monitoring, Approval, and Certification of Juvenile Justice Programs and Facilities (amending 6VAC35-20-10, 6VAC35-20-30, 6VAC35-20-35, 6VAC35-20-37, 6VAC35-20-50, 6VAC35-20-60, 6VAC35-20-69, 6VAC35-20-75, 6VAC35-20-80, 6VAC35-20-90, 6VAC35-20-92, 6VAC35-20-93, 6VAC35-20-94, 6VAC35-20-100, 6VAC35-20-110, 6VAC35-20-120, 6VAC35-20-150; adding 6VAC35-20-36, 6VAC35-20-36.1, 6VAC35-20-61, 6VAC35-20-85, 6VAC35-20-91, 6VAC35-20-115, 6VAC35-20-200, 6VAC35-20-210, 6VAC35-20-220, 6VAC35-20-230, 6VAC35-20-240; repealing 6VAC35-20-63, 6VAC35-20-65, 6VAC35-20-67).

Statutory Authority: §§ 16.1-233 and 66-10 of the Code of Virginia.

Effective Date: September 25, 2013.

Agency Contact: Barbara Peterson-Wilson, Regulatory Coordinator, Department of Juvenile Justice, 600 East Main Street, 20th Floor, Richmond, VA 23219, telephone (804) 588-3902, FAX (804) 371-6490, or email barbara.peterson-wilson@djj.virginia.gov.

Summary:

Amendments include (i) separating the requirements for the certification of court service units and facilities and the auditing of VJCCCA programs and offices on youth; (ii) making the director or designee responsible for issuing certifications, with oversight by the board, when a program or facility is found in noncompliance with applicable regulatory requirements; (iii) reducing the number of required onsite monitoring visits from two (one announced, one unannounced) to one scheduled per year; (iv) adding a requirement for court service units and facilities to perform self-audits; (v) clarifying pre-audit, audit, and post-audit procedures, including setting specific time frames; (vi) incorporating the requirements for corrective action plans and certification audit reports by including some requirements from the existing procedures and practices; (vii) setting specific criteria and parameters regarding issuance of certificates depending on level, duration, and frequency of noncompliance; (viii) adding a requirement for the program's or facility's supervisory or governing authority to be provided with notice of the certification action; (ix) incorporating the parameters for the board's review of programs and facilities found in noncompliance; (x) reworking the section regarding actions following decertification to track statutory authority; and (xi) removing the outdated list of "mandatory standards."

The substantive changes to the regulation since publication of the proposed stage are related to notice of the certification determination date and certification action when there is a noncompliance notice. These changes include:

1. The program or facility administrator shall be provided notice of the right to appear 10 business days prior to the director's or designee's consideration of the audit report and final certification determination.

2. When a facility is less than 100% compliant with all regulatory requirements and the certification unit provides a subsequent status report prior to the certification action that identifies 100% compliance with all regulatory requirements, the director or designee shall certify the facility for a specific period of time up to three years.

3. When a facility is (i) less than 100% compliant with all critical regulatory requirements or (ii) less than 90% compliant with all noncritical regulatory requirements and the certification unit provides a subsequent status report prior to the certification action that identifies 100% compliance with all critical regulatory requirements and at least 90% compliance with all noncritical regulatory requirements, the director or designee shall certify the facility for a specific period of time up to three years.

4. If the certification unit provides a subsequent status report and there is still a finding of less than 100% compliance with all critical regulatory requirements or less than 90% compliance with all noncritical regulatory requirements and there is an acceptable corrective action plan, the certification shall be continued for up to a year with the requirement that a status report be completed for review prior to extending the certification period.

5. If the status report results find 100% compliance with all critical regulatory requirements and 90% or greater compliance on noncritical regulatory requirements, the director or designee shall certify the facility for a specific period of time up to three years.

6. If the status report results find the program or facility continues to fail to meet compliance requirements, the program or facility shall be placed on probation for a period of up to a year.

7. If there is not an acceptable corrective action plan or there is a health, welfare, or safety violation, or both, the program and facility shall be placed on probation for up to a year or decertified.

8. Programs and facilities in probationary status shall have a status report completed prior to the expiration of the probationary period and (i) if the status report results find the program meets compliance requirements, the facility or program shall be certified for up to three years or (ii) if the status report results find the program fails to meet compliance requirements, the facility or program shall be decertified.

9. Additionally, the director or designee has the authority to make certification decisions outside of the regulatory requirements under certain circumstances.

Summary of Public Comments and Agency's Response: No public comments were received by the promulgating agency.

CHAPTER 20
REGULATIONS REGULATION GOVERNING THE MONITORING, APPROVAL, AND CERTIFICATION OF JUVENILE JUSTICE PROGRAMS AND FACILITIES

Part I
Definitions and General Provisions

6VAC35-20-10. Definitions.

The following words and terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise:

"Administrative probation" means the status granted to a program or facility in an emergency situation at the discretion of the director pending the next regularly scheduled board meeting.

"Administrative review" means the audit of the administrative records of a local jurisdiction or governing commission. The administrative review involves only a review of documentation housed at a central office.

"Appeal of a finding of noncompliance" means the action taken by a unit, facility or program administrator after an a certification audit when there is disagreement with a team finding of noncompliance with an individual regulatory requirement.

"Audit team leader" means the person designated by the director or designee to organize and facilitate the certification audit or the audit of a VJCCCA program or office on youth.

"Board" means the Virginia Board of Juvenile Justice.

"Certification" or "certified" means the board's formal finding that a program meets (i) all mandatory standards; (ii) an acceptable percentage of all other standards as indicated in the chart at 6VAC35-20-100; and (iii) the requirements of applicable board policies; and or facility is consequently approved to operate for a specific period of time as provided for in 6VAC35-20-100.

"Certification action" means the department's decision to issue or deny certification or to decertify a program or facility as provided for in 6VAC35-20-100 or the board's decision to take action pursuant to 6VAC35-20-115.

"Certification audit" means an on-site visit by the process by which designated personnel to assess a program's or facility's compliance with applicable board standards and policies regulatory requirements, which includes an on-site visit, the results of which are reported to the board for in a certification audit report for certification action as provided for in 6VAC35-20-100. All facilities and court service units regulated by the board shall be subject to certification audits.

"Certification audit report" or "audit report" means the official report of certification audit findings prepared for review by the board by the audit team leader as provided for in 6VAC35-20-90.

"Certification status" means the type of certification approved by the board for issued to a given program or facility, including which includes the period of time specified in the certificate, during which the program or facility is approved to operate and must maintain its standards compliance levels and have acceptable plans of action compliance with its regulatory requirements and any corrective action plan.

"Certified" means that the board has approved a program to operate under the conditions set out in 6VAC35-20-100.

"Compliance" means meeting the requirements of a standard or an applicable board policy.

"Compliance documentation" means specific documents or information including records, reports, observations, and verbal responses to establish or confirm compliance with a regulatory requirement by a program or facility.

"Conditional certification" means a temporary certification status issued to a new or newly opened facility as provided for in 6VAC35-20-100.

"Corrective action plan" means a written document that, in accordance with 6VAC35-20-91, states what has been or will be done to bring all deficiencies into compliance with regulatory requirements.

"Critical regulatory requirements" means those regulatory requirements for programs or facilities, as defined by the board, that must be maintained at 100% compliance. Critical regulatory requirements were previously termed "mandatory standards."

"Decertified" means that a previously certified program does not meet the requirements to be certified and is no longer approved to operate a status imposed in accordance with 6VAC35-20-120 when it is determined that a program or facility has not met an acceptable percentage of compliance with its regulatory requirements as provided for in 6VAC35-20-85.

"Deficiency" and "noncompliance" means that the program or facility (i) does not meet, or has not demonstrated that it meets, the requirements of a board standard or policy regulatory requirements or (ii) does not comply with the Virginia Juvenile Community Crime Control Act local plan approved by the board.

"Department" means the Virginia Department of Juvenile Justice.

"Director" means the Director of the Department of Juvenile Justice.

"Life, health, "Health, welfare, or safety violation" means any action or omission that results in noncompliance with a board standard or policy and causes an immediate and potentially serious substantial threat to the life, health, welfare, or safety of the youth juveniles or staff in juvenile residential programs facilities.

"Juvenile residential facility" or "facility" means a publicly or privately operated facility or placement where 24 hour-per-day care is provided to residents who are separated from their legal guardians and that is certified pursuant to this chapter. As used in this regulation, the term includes juvenile group homes and halfway houses, juvenile secure detention centers, and juvenile correctional centers.

"Mandatory standards" means those standards of performance for programs as defined by the board which must be maintained in 100% compliance at all times.

"Monitoring review" means a review by designated department personnel assessing the program's or facility's compliance with regulatory requirements. A monitoring review may be conducted via electronic means and does not require on-site examination of the program or facility. A monitoring review may be done in conjunction with a program's or facility's self-audit, which is provided for in 6VAC35-20-61.

"Monitoring visit" means an on-site review evaluation and inspection by designated personnel to assess a program's or facility's compliance with board-approved standards, policies and, when applicable, Virginia Juvenile Community Crime Control Act local plan regulatory requirements.

"Newly opened facility" means both (i) a facility that is newly constructed and or (ii) an existing facility that is being placed in service as a juvenile residential program facility.

"Office on Youth" means nonresidential programs funded via the Virginia Delinquency Prevention and Youth Development Act (Chapter 3 (§ 66-26 et seq.) of Title 66 of the Code of Virginia).

[ "Preliminary summary suspension order" means an order issued by the director as provided in 6VAC35-20-37 taking immediate action against a program or facility when there is a known substantial health, welfare, or safety threat. This order is issued summarily prior to review by the board and is subject to due process protections after issuance. ]

"Plan of action" means a written document that explicitly states what has been or will be done to bring all deficiencies into compliance with board standards and policies.

"Probation" "Probationary certification" means the temporary status granted to a program by the board or facility to provide a period of time in which to come into demonstrate compliance with standards regulatory requirements.

"Program" means a juvenile residential facility, court service unit, or a nonresidential service subject to standards or policies of the board applicable regulatory requirements. For the purpose of this regulation, VJCCCA programs and offices on youth are not included in this definition.

"Program or facility administrator" means the staff member individual responsible for the operation operations of a program, or facility or institution subject to regulatory requirements.

"Random sampling" means a system for selecting programs for monitoring visits, by which all programs in a given category have a similar likelihood of being selected for a visit, but which may not result in any given program receiving a monitoring visit during any given period of time.

"Regulatory requirement" means a provision of a regulation promulgated by the board to which a program or facility must adhere. A section, subsection, or subdivision of a regulation may include multiple regulatory requirements as provided for in 6VAC35-20-85.

"Substantial compliance" means that the program meets all applicable mandatory standards and at least 90% of all other applicable standards.

[ "Status report" means a report that summarizes a review of the areas on which there was a finding of noncompliance and states the program's or facility's compliance standing indicated through the review. For a status report, the regulatory requirements are monitored at the same level of compliance as assessed in the certification audit. ]

"Summary suspension order" means an order issued by the director in accordance with § 66-24 of the Code of Virginia and 6VAC35-20-37 temporarily suspending a program's or facility's certification.

"Systemic deficiency" means that deficiencies have been found in three or more separate but related standards and have been cited by certification personnel as indicating that a program may have significant problems in a given area such as recordkeeping, training, health services, social services, security, etc.

"Unresolved life, health or safety violation" means a life, health or safety violation that is not corrected in an approved corrective plan of action or that has recurred after the life, health or safety violation was noted during an interim monitoring visit.

"Variance" means a board action that relieves a program or facility from having to meet a specific standard regulatory requirement or develop a corrective action plan of action for that standard, either permanently or regulatory requirement for a determined period of time, when (i) waiving these requirements will not result in a threat to the life, health or safety of juveniles or staff; (ii) enforcement will create an undue hardship; (iii) the standard is not specifically required by statute or by the regulations of another government agency; (iv) the standard is not designated as mandatory by the board; and (v) juveniles' care or services would not be adversely affected.

"VJCCCA program" means a nonresidential program established under the Virginia Juvenile Community Crime Control Act (Article 12.1 (§ 16.1-309.2 et seq.) of Chapter 11 of Title 16.1 of the Code of Virginia).

"VJCCCA program or office on youth audit" means the on-site visit by designated department personnel to assess a program funded through the Virginia Juvenile Community Crime Control Act (Article 12.1 (§ 16.1-309.2 et seq.) of Chapter 11 of Title 16.1 of the Code of Virginia) or the Virginia Delinquency Prevention and Youth Development Act (Chapter 3 (§ 66-26 et seq.) of Title 66 of the Code of Virginia) for compliance with the regulatory requirements as provided for in 6VAC35-150 (Regulation for Nonresidential Services) and 6VAC35-60 (Minimum Standards for Virginia Delinquency Prevention and Youth Development Act Grant Programs), as applicable.

"VJCCCA program or office on youth audit report" means an official report of a VJCCCA program or office on youth audit.

"Waiver" means a formal statement from the department temporarily excusing a program or facility from meeting a nonmandatory standard noncritical regulatory requirement pending board action on a formal variance request.

"Written" means the required information is communicated in writing. Such writing may be available in either hard copy or electronic form.

6VAC35-20-30. Purpose.

This regulation prescribes how, in accordance with Code of Virginia §§ 16.1-234, 16.1-309.1, 16.1-249, 16.1-309.9 B, 16.1-309.10, 16.1-349, and 66-10, 66-24, and 66-25.1:3 of the Code of Virginia, (i) the Board and Department of Juvenile Justice department will monitor and approve and audit juvenile residential facilities, programs, VJCCCA programs, and offices on youth; (ii) the department will certify residential facilities and nonresidential programs state-operated and local court service units that are part of the Commonwealth's juvenile justice system; and (iii) the board will review certification audit reports of programs and facilities found in noncompliance with applicable regulatory requirements.

6VAC35-20-35. Guidance documents.

To help programs and facilities meet all regulatory and policy requirements, the department shall prepare guidance documents compiling all standards and policies regulatory requirements applicable to each type of program or facility subject to this chapter and stating how compliance will be assessed. The guidance documents [ will shall ] serve as the basis for monitoring visits, monitoring reviews, certification audits, and the board's certification action and VJCCCA program or offices on youth audits. [ The guidance documents shall be posted on the department's website at http://www.djj.virginia.gov. ]

6VAC35-20-36. Program or facility relationship to regulatory authority.

A. The program or facility shall submit or make available to the audit team leader such reports and information required to establish compliance with applicable regulatory requirements. Documentation supporting compliance with regulatory requirements shall be retained by the program or facility from the date of the previous certification audit or VJCCCA program or office on youth audit.

B. The program or facility administrator shall notify the director or designee within five business days of any significant change in administrative structure or newly hired chief administrative officer or program or facility administrator or director.

C. The program or facility administrator shall, [ as required ] in [ the applicable guidance documents as prescribed in 6VAC35-20-35 accordance with the process established by the department ], notify the director or designee of the following:

1. Any serious incidents affecting the health, welfare, or safety of citizens, individuals under the supervision of the department, or staff;

2. Lawsuits against or settlements relating to the health, welfare, safety, or human rights of residents; and

3. Any criminal charges or reports of suspected child abuse or neglect against staff relating to the health, welfare, safety, or human rights of residents.

6VAC35-20-36.1. Department response to reports of health, welfare, or safety violations.

[ A. ] Whenever the department becomes aware of a health, welfare, or safety violation, the department shall take immediate action to correct the situation if not already done by the program or facility. The department's actions may include, but are not limited to, the following:

1. Reporting the situation to child protective services, the Virginia State Police or the law-enforcement agency with jurisdiction, or other enforcement authorities, as applicable and appropriate; or

2. Taking any action authorized in 6VAC35-20-37 for violations in a juvenile residential facility.

[ B. The department shall report 3. Reporting ] to the board no later than its next regularly scheduled meeting (i) the nature and scope of the health, welfare, or safety violation and (ii) the action taken by the department or the program or facility to correct the violation.

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, welfare, or safety violation or (ii) a program or facility is not in substantial compliance with board-approved standards, policies, regulatory requirements or local plan for the Virginia Juvenile Community Crime Control Act programs requirements. Such administrative action may include, but is not limited to (a) withholding funds; (b) removing juveniles from the program or facility; or (c) placing the program or facility on administrative probation probationary certification status for up to six months pending certification action review by the board pursuant to 6VAC35-20-115; or (d) summarily suspending the certificate pursuant to subsection B of this section. In taking such action, the department shall notify the program or facility administrator, the administrative entity that to which the program or facility reports to, and the board, in writing, of the reason for the administrative action and the action the program or facility must take to correct the situation violation.

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 preliminary summary order of suspension order of the license or certificate of any group home or the juvenile residential facility so regulated by the department. board as follows:

1. Conditions A preliminary [ order of summary ] suspension [ order ] may be issued when conditions or practices existing exist in the home or facility posing that pose an immediate and substantial threat to the health, welfare, or safety, and welfare of the residents include including, but not limited to, the following:

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 upon issuance of the preliminary summary suspension order and without delay notify the licensee or certificate holder verbally and by in writing via (i) facsimile, (ii) electronic mail, or (iii) hand delivery of the issuance of the preliminary order of suspension and the opportunity for a hearing before the director or his designee within three working business days of the issuance of the preliminary summary order of suspension order. The chair of the board must be notified immediately when the director issues a preliminary summary suspension order. In accordance with 6VAC35-20-36.1, the director shall report the action taken to the board no later than its regularly scheduled meeting.

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 time frames 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 preliminary summary suspension order. If sustained or amended, the order is considered final. The director or his designee shall notify the licensee or certificate holder in writing of the results of the appeal and of the right to appeal the final order to the appropriate circuit court within 10 [ business ] days of the hearing decision. 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 order. In accordance with 6VAC35-20-65 6VAC35-20-36.1, the director shall report the action taken 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 6VAC35-20-90.

Part II
Certification Audits of Programs and Facilities

6VAC35-20-50. Preaudit process for certification audits.

A. At least six months in advance of an a certification audit, personnel designated by the director the department shall notify each program or facility to be audited of the scheduled audit date and the name of the designated audit team leader.

B. Up until At least 90 [ calendar ] days before the scheduled audit, the program or facility administrator may request that the audit be rescheduled. Except as provided in 6VAC35-20-100, audits, even if rescheduled, must occur before the expiration of the current certification, unless specifically approved by the director.

C. Audit team members shall be appointed and notified of their appointment at least 30 days prior to the scheduled audit. The program administrator of the agency to be audited shall receive a list of the team members.

D. At least 10 days prior to the scheduled audit, C. The audit team leader shall provide the program or facility administrator with a list of audit team members as soon as practicable, but no later than 10 [ business ] days before the scheduled certification audit. Upon notification of the audit team members, the program or facility administrator may, for just cause, request that one or more members of the audit team be replaced. Every reasonable effort will be made to comply with the request. Any subsequent addition or substitution of the audit team members shall be communicated to the program or facility administrator as soon as practicable and may be made subject to the mutual agreement of the audit team leader and program or facility administrator.

E. In instances where several programs are operated under the administration of a single commission, the certification team and the program administrator may agree to an administrative review audit.

6VAC35-20-60. Monitoring visits of programs and facilities.

A. All state and local programs or facilities subject to standards regulations issued by the Board of Juvenile Justice board shall be subject to periodic, scheduled monitoring visits, scheduled and or monitoring reviews conducted in accordance with written department procedures. Whenever deemed necessary, the board may require that a monitoring visit be conducted of any program.

B. The department shall annually submit to the board develop a plan for monitoring programs and facilities subject to certification audits, which shall provide for at least the following:

1. All residential programs, court service units and offices on youth that are currently receiving state funding programs and facilities that are subject to certification audits shall receive at least one announced scheduled monitoring visit per year. A certification audit may shall satisfy the requirement of a scheduled monitoring visit. In addition, all residential programs and court service units shall receive at least one unannounced monitoring visit per year.

2. All nonresidential programs established under the Virginia Juvenile Community Crime Control Act (Article 12.1 of Title 16.1 of the Code of Virginia) shall be reviewed at least once every two years to determine compliance with the approved local plans and standards promulgated by the board. Additional monitoring visits or monitoring reviews may be conducted at the request of the board, department, or program or facility administrator.

3. Individual nonresidential programs shall receive monitoring visits according to the department's annual plan, which may provide for random sampling of programs in various categories. However, during each calendar year at least one nonresidential program in each Virginia Juvenile Community Crime Control Act (VJCCCA) plan shall receive a monitoring visit.

6VAC35-20-61. Self-audit of programs and facilities subject to certification audits.

A. All programs and facilities subject to certification audits shall, in accordance with [ department procedures the department's Guidance Document: Self-Audits/Evaluations, September 2013 ], conduct, except in the year the program or facility is subject to a certification audit, an annual self-audit for compliance with applicable regulatory requirements.

B. The self-audit reports shall be made available during the certification audit.

6VAC35-20-63. Reports of monitoring visits. (Repealed.)

The department shall report to the board in writing any significant deficiencies identified through monitoring visits or other means when a program has failed to take needed corrective action.

6VAC35-20-65. Reports required of life, health and safety violations. (Repealed.)

A. Whenever department personnel become aware of a life, health or safety violation, the department shall take immediate action to correct the situation if the program has not already done so. Such action may include but is not limited to reporting the situation to Child Protective Services, the State Police, or other enforcement authorities as appropriate, administrative probation, removal of residents or suspension of finding. The department shall report to the board no later than its next regularly scheduled meeting: (i) the nature and scope of the violation, and (ii) the action taken by the department or the program to correct the deficiency.

B. When a life, health or safety violation has not been adequately corrected, the board may take certification action up to and potentially including decertification.

6VAC35-20-67. Disputes of noncompliance findings. (Repealed.)

Any program that is cited for noncompliance with board-approved standards, policies or local VJCCCA plan may:

1. Request a variance in accordance with 6VAC35-20-92; or

2. Appeal the finding, in writing, within 10 days of receiving notice of the finding, in accordance with department procedures and 6VAC35-20-94.

6VAC35-20-69. New Newly opened facilities and new construction, expansion, or renovation of residential programs facilities.

A. When a newly opened facility seeks certification to allow the admission of residents, the facility administrator shall contact the director or designee to request a review of the facility for conditional certification.

B. The facility administrator and the department shall follow the requirements of this chapter and department procedures in reviewing a facility prior to admission of residents. New construction, expansions, and renovations in all juvenile residential programs facilities, whether or not the facility or its sponsor is seeking reimbursement for construction or operations, shall conform to applicable the governing provisions in of the board's Regulations for Local Juvenile Residential Facility Construction and Reimbursement of Local Construction Costs (6VAC35-30), and Standards for Interagency Regulation of Children's Residential Facilities (22VAC42-10). In addition, the department shall consider the facility's degree of compliance with the Guidelines for Minimum Standards in Design and Construction of Juvenile Facilities. following regulations [ and any applicable guidance documents related thereto ]:

1. Regulation Governing Juvenile Correctional Centers (6VAC35-71);

2. Regulation Governing Juvenile Secure Detention Centers (6VAC35-101);

3. Regulation Governing Juvenile Group Homes and Halfway Houses (6VAC35-41); and

4. Regulation Governing State Reimbursement of Local Juvenile Residential Facility Costs (6VAC35-30).

B. The department shall not approve the housing of juveniles in a newly opened facility if the facility does not meet the requirements for a conditional certification as provided in 6VAC35-20-100.

C. The department shall not approve the housing of juveniles in any portion of a facility that has been modified through expansion or renovation, until designated department staff visit the facility and verify that:

1. The facility or applicable portion thereof complies with all applicable mandatory standards and physical plant standards; and

2. The current certification issued by the board is appropriate to the status of its program and construction.

C. A newly constructed, expanded, or renovated facility shall, except as provided in subsection D of this section, obtain conditional certification as provided in 6VAC35-20-100 prior to the placement of residents in the new facility or portion of an existing facility subject to the expansion or renovation.

D. The director or designee shall consider the request for certification within 60 days of receiving the request and report of the basic audit findings. Actions taken by the director or designee shall be governed by the provisions of 6VAC35-20-100.

6VAC35-20-75. Certification of individual programs or facilities.

A. The board director or designee shall [ individually ] certify [ all each ] (i) juvenile residential [ facilities, facility ] and (ii) court service [ units unit ] and offices on youth that are currently receiving state funding.

B. The department shall schedule and conduct certification audits in sufficient time for the board to take action on the audit report before a program's current certification expires. The department shall publish procedures for naming audit team members, conducting on-site audits, determining compliance, conducting exit interviews, reviewing and approving corrective plans of action, and instructing programs how to request variances or appeal findings.

C. Upon the completion of the audit, the certification audit findings shall be reported to the program's administrator and sponsor and to appropriate department personnel. The program administrator or sponsor may appeal any of the certification audit findings in accordance with department procedures that shall specify (i) the timeframes for filing the appeal and for the department's response; and (ii) the department personnel responsible for considering the appeal.

D. Appeals of audit findings that cannot be resolved by the department shall be forwarded to the board for resolution as provided in 6VAC35-20-94.

E. Designated department personnel shall review and approve plans of action to address deficiencies identified in the audit report, and summaries of the approved plans of action shall be forwarded to the board along with the audit report.

F. Requests for variances shall be forwarded to the board along with the department's recommendation to approve or disapprove the variance.

B. The director or designee may extend a current certification for a specified period of time pending a certification audit and the completion of an administrative review, provided the department is not aware of any health, welfare, or safety violations.

C. If a program's or facility's certification expires prior to the director's or designee's consideration of the certification audit report, the program's or facility's current certification status shall continue in effect until the director or designee takes certification action.

D. The director or designee may, upon the request of a program or facility administrator or the department, modify during the term of the certificate the conditions of a certificate relating to a program's or facility's certification status or capacity, the residents' age range or sex, the facility's location, or changes in the services offered and provided.

E. A certificate is not transferrable and automatically expires when there is a change of ownership or sponsorship of the program or facility.

F. When the program or facility ceases to operate, the program or facility administrator shall return the certificate to the director or designee. The department shall notify the board of the change in the program's or facility's status.

6VAC35-20-80. On-site Certification audit procedures.

A. The burden of providing proof of compliance with standards rests with the program staff. Documentation created once the audit has begun shall not be accepted. The program or facility shall demonstrate [ substantial ] compliance as required in this chapter [ and by any applicable guidance documents that require ] that the program or facility [ have has ] no areas of noncompliance that pose an immediate and direct danger to residents.

B. The audit team shall (i) visit the program or facility and (ii) review and examine sufficient documentation to adequately render a determination of compliance as provided for in 6VAC35-20-85.

1. The burden of providing proof of compliance with regulatory requirements rests with the program or facility staff.

2. A program or facility with an approved variance or waiver shall provide such documentation to the certification audit team.

B. 3. It is permissible to provide additional documentation should the certification team request it; however, such documentation must already exist when the audit begins. Once the audit is concluded, any changes made by an agency will not change the compliance determination for a given standard but instead become part of the program's plan of action.

4. Compliance [ documentation ] shall be [ collected determined ] through documentation, interview, and observation.

6VAC35-20-85. Determining compliance with individual regulatory requirements.

A. During the audit process, the department shall determine whether the program or facility is compliant with each regulatory requirement. To be found in compliance, the following shall be shown:

1. The program or facility shall:

a. For critical regulatory requirements, demonstrate 100% compliance;

b. For noncritical regulatory requirements with multiple elements, the certification audit team will make a determination of compliance as [ indicated in the applicable compliance document provided in department procedures ] that shall require (i) an acceptable percentage of compliance with the [ provision and entire regulatory requirement or ] (ii) [ an absence of any systemic noncompliance in ] any single element; or

c. For all noncritical regulatory requirements, demonstrate an acceptable percentage compliance as provided [ for in the applicable guidance document in department procedures ].

2. The program or facility shall not have:

a. Any circumstance or condition constituting a pattern of action that presents a concern for the health, welfare, or safety of the residents, program participants, or staff; or

b. Any circumstance or condition that presents an immediate threat to the health, welfare, or safety of the residents, program participants, or staff.

B. The determination of noncompliance shall be a decision made by the entire certification team [ in accordance with the applicable guidance document ].

C. For purposes of calculating percentage of compliance, the determination of what constitutes individual regulatory requirements [ (i.e., (e.g., ] section, subsection, subdivision, or element in a list in the regulatory chapter) will be specified [ in the applicable guidance document as provided in department procedures ].

6VAC35-20-90. Certification audit reports findings.

A. Upon the completion of the audit, the certification audit findings shall be discussed with the program's or facility's administrator or designee.

A. B. A written report of the team's findings from the certification audit shall be submitted to the program administrator, within 10 working business days following the compliance certification audit, to (i) the program or facility administrator [ and ] (ii) [ the supervisory or governing authority over the program or facility administrator, and (iii) to ] the director or designee. Any finding of noncompliance with a regulatory requirement shall be documented.

B. The program administrator shall develop a plan of action to correct all noncompliance findings. The plan of action shall be submitted to the department personnel as designated in department procedures within 15 days of receipt of the report of the team's findings. In exceptional situations, the designated department personnel may grant a 30-day extension to a program administrator for the development of an action plan. C. Any program or facility that is cited for noncompliance with a regulatory requirement may within 10 business days of receiving the written report of the findings for the certification audit:

1. Request in writing a variance in accordance with 6VAC35-20-92; or

2. Appeal the finding of noncompliance in writing and in accordance with department procedures and 6VAC35-20-94.

C. The department shall issue guidelines, including timeframes, that provide a process for reviewing and approving plans of corrective action, including those that are initially deemed unacceptable and in need of refinement, in time for the plans to be included in the audit report to the board. If an acceptable plan of action is not submitted within the required time frame, the director or designee shall refer the matter to the board for action.

D. Each certification audit report submitted to the board shall contain:

1. The program's name, administrator, sponsor, location and purpose;

2. A summary of the program's target audience, its relation to other entities in the community and in the juvenile justice system, and other information relevant to its operation;

3. The date of the certification audit and the names of the audit team members;

4. Notation of all standards and policies for which noncompliance was found, including especially notation of any life, health or safety violations; a brief description of the circumstances, including extenuating and aggravating factors; and supplemented, when appropriate, with photographic evidence or other documentation; and

5. For each deficiency cited, a plan of corrective action that states:

a. The action taken or required to correct the deficiency and prevent its recurrence;

b. The person or agency responsible for the action; and

c. The deadline for taking the action.

6VAC35-20-91. Corrective action plans and certification audit reports.

A. For each finding of noncompliance, the program or facility administrator shall develop a corrective action plan.

1. The corrective action plan shall be submitted to the department within 30 [ calendar ] days of receipt of the written certification audit findings. For good cause, the department may grant a 30- [ calendar ] day extension to a program or facility administrator for the development of the corrective action plan.

2. The department shall issue guidelines that provide for (i) the format [ , (ii) any content not currently required by this section, ] and [ (iii) (ii) ] the process for the department's review and approval of corrective action plans.

3. The corrective action plan shall include the following:

a. A description of any extenuating or aggravating factors contributing to the noncompliant circumstances or conditions;

b. A description of each corrective action required or tasks required to correct the deficiency and prevent its recurrence;

c. The actual or proposed date of task completion; and

d. The identification of the person responsible for oversight of each element of the implementation of the corrective action plan.

If the corrective action proposed by the program or facility involves a request for a variance in accordance with 6VAC35-20-92, the corrective action plan must also state what action will be taken to meet or attempt to meet the regulatory requirement should the request for the variance be denied.

4. The program or facility administrator shall be responsible for developing and implementing a written corrective action plan.

5. If a finding of noncompliance results in a request for an appeal of the finding of noncompliance or a variance, documentation of the request for a variance or of the appeal of the finding of noncompliance should be attached to the corrective action plan.

B. Each certification audit report submitted to the director or designee shall contain:

1. The program's or facility's name, administrator, and location;

2. A summary of the program's or facility's population served, programs, and services provided;

3. The date of the certification audit and the names of the audit team leader and members; and

4. Notation of all regulatory requirements for which there was a finding of noncompliance as provided for in 6VAC35-20-85.

If there is a finding of noncompliance with a regulatory requirement, the report shall describe the noncompliance and incorporate the program's or facility's corrective action plan for each area of noncompliance. If a program or facility administrator fails to submit a corrective action plan within the time specified, the certification audit report, [ with audit team recommendations, ] shall be submitted to the director or designee for consideration.

C. The program or facility administrator shall submit to the audit team leader, upon completion of the corrective action plan, documentation confirming all corrective actions have been fully executed.

6VAC35-20-92. Variance request.

A. Any request for a variance must be submitted in writing and. If the request is submitted subsequent to a finding of noncompliance in a certification audit, the request must be submitted within 10 [ business ] days of receiving the written report of the findings from the certification audit. All requests shall include:

1. The nonmandatory standard noncritical regulatory requirement for which a variance is requested;

2. The justification for the request;

3. Any actions taken to come into compliance;

4. The person and agency responsible for such action;

5. The date at which time compliance is expected; and

6. The specific time period requested for this variance; and.

7. A draft plan of corrective action describing how the program would meet the standard should the variance not be granted.

The department's recommendation to the board as to the certification action to be taken shall address each of the program's variance requests.

B. Documentation of any variance requests stemming from a finding of noncompliance in a certification audit shall be submitted along with the corrective action plan for correcting any deficiencies cited during the certification audit as provided for in 6VAC35-20-91.

C. A requested variance shall not be implemented prior to obtaining the approval of the board.

D. Requests for variances shall be placed on the agenda for consideration at the next regularly scheduled board meeting. [ The requested variance shall be accompanied by the department's recommendation to approve or disapprove the variance. ]

E. In issuing variances, the board shall specify the scope and duration of the variance.

6VAC35-20-93. Waivers.

A. When a program or facility has submitted a formal variance request to the board concerning a nonmandatory standard noncritical regulatory requirement, the director may, but is not required to, grant a waiver temporarily excusing a program or facility from meeting the requirements of the standard regulation when (i) the standard regulatory requirement is not required by statute or by federal or state regulations other than those issued by the board of juvenile justice; (ii) noncompliance with the standard regulatory requirement will not result in a threat to the life, health, welfare, or safety of residents, the community, or staff; (iii) enforcement will create an undue hardship; and (iv) juveniles' care or services would not be adversely affected.

B. A waiver shall be granted only when the program or facility is presented with emergency conditions or circumstances making compliance with the regulatory requirement either impossible or impractical.

C. The waiver shall be in effect only until such time as the board acts on the variance request. The board will act on the matter at its first meeting following notice from the department director or designee that a waiver has been granted.

C. D. The director or designee shall promptly notify the board [ chair ] by first class mail [ in writing ] of waivers granted, and the rationale for so doing granting.

D. E. A program or facility will not be cited for noncompliance with the requirements of a standard regulatory requirement subject to a waiver during the time it operates pursuant to a waiver approved by the director or designee.

6VAC35-20-94. Appeal process for a finding of noncompliance [ with an individual regulatory requirement ].

If an appeal of any audit findings is being made, the program administrator shall attach the appeal request to any plan of action and submit the appeal to department personnel as designated in agency procedures within 15 days of written notification of the audit findings.

A. A program or facility administrator may appeal a finding of noncompliance of an audit by submitting the appeal to the director or designee within 10 [ business ] days of the [ receipt of ] written notification of the audit findings.

Department staff as designated in agency procedures B. The manager for the certification team or designee shall contact the program or facility administrator and make every effort to resolve the appeal with the program administrator within 15 10 [ business ] days of receiving the appeal receipt of the appeal. If the program administrator is not satisfied, he may submit a written request to department staff as designated in department procedures within five days to have the matter reviewed by the Board of Juvenile Justice at its next scheduled meeting. The matter will be placed on the board's agenda pursuant to timeframes adopted by the board for submission of agenda items.

C. If department personnel and the program or facility administrator are not able to informally resolve the issue on appeal, the request for an appeal shall be forwarded by the manager for the certification team or designee as soon as practicable to the director or designee.

1. The director or designee shall issue a decision on the appeal within 15 business days of receipt.

2. The program or facility administrator shall be informed as soon as practicable, but no later than the end of the next business day, of the director's or designee's decision.

D. If the appealed finding of noncompliance remains unresolved after exhaustion of the informal review and appeal to the director [ or ] designee, the program or facility administrator may appeal the director's or designee's decision to the board. Upon request, the department shall place the appealed finding of noncompliance on the board's agenda for consideration at its next regularly scheduled meeting.

E. If the appeal is granted [ and the finding overruled ], the finding of noncompliance shall be removed from the certification audit report.

F. An appeal pursuant to this section does not negate the requirement to submit a corrective action plan, as required by 6VAC35-20-91, on the disputed regulatory requirement.

6VAC35-20-100. Board certification Certification action.

A. The board may extend a current certification for a specified period of time, pending a certification audit and the completion of administrative reviews, provided the program meets all mandatory standards and the board and the department are not aware of any life, health or safety violations.

B. If a program's certification expires during a period when the board does not meet, the program's current certification status shall continue in effect until the board meets and takes certification action.

C. Once the board takes certification action, the board will issue a certificate or letter clearly identifying the program, the certification status, and the period of time during which the certification will be effective unless the certificate is revoked or surrendered sooner.

D. For purposes of calculating percentage of compliance, a standard will be identified either as a section of the Virginia Administrative Code or a subsection identified by an uppercase letter (A, B, C, etc.). Thus, whenever a section of a 6VAC35 regulation contains one or more subsections, each subsection constitutes a distinct standard. Subdivisions (identified by numerals (1, 2, 3, etc.) or lower case letters (a, b, c, etc.) are not separate standards but are elements of the standard. When any element a, b, c or 1, 2, 3 is not met, the standard in which it appears is not met.

E. A Conditional Certification for up to six months will be issued to a new program that:

1. Demonstrates 100% compliance with all mandatory standards;

2. Demonstrates at least 90% compliance with all nonmandatory standards;

3. Has acceptable plans of action for all noncompliances; and

4. Has no unresolved life, health or safety violations.

F. A One-year Certification will be issued when a program currently holds a Conditional Certification, a One-Year Certification, or a Three-Year Certification, and:

1. Is in 100 % compliance with all mandatory standards;

2. Demonstrates at least 90% compliance with all other standards;

3. Has acceptable plans of action for all noncompliance;

4. Has no unresolved life, health or safety violations; and

5. Has no more than one systemic deficiency.

G. A Three-year Certification will be issued when a program currently holds a One-year Certification or a Three-year Certification and the program:

1. Is in 100% compliance with all mandatory standards;

2. Demonstrates at least 95% compliance with all other standards;

3. Has acceptable plans of action for all noncompliance;

4. Has no unresolved life, health or safety violations; and

5. Has no systemic deficiencies.

H. Any program, in any certification status, will be placed on probation for up to six months when the program:

1. Is in less than 100% compliance with all mandatory standards but has acceptable plans of action to address deficiencies;

2. Demonstrates less than 90% compliance with all other standards;

3. Does not have acceptable plans of action for all noncompliance;

4. Has one or more unresolved life, health or safety violations; or

5. Has two or more systemic deficiencies.

I. Any program, regardless of current certification status, will be decertified or denied certification when:

1. The program is in less than 100% compliance with all mandatory standards without acceptable plans of action to address deficiencies;

2. The program demonstrates less than 90% compliance with all other standards and does not have acceptable plans of action to address deficiencies;

3. The program, if on probation or administrative probation, has not corrected the circumstances that were cited in placing the program on probation or administrative probation to the point that the program would qualify for at least conditional certification; or

4. The program's staff have (i) committed, permitted, aided or abetted any illegal act in the program; or (ii) violated child abuse or neglect laws; or (iii) deviated significantly from the program or services for which a certificate was issued without prior approval from the board; or (iv) failed to correct any such deviations within the time specified by the board; or (v) falsified records.

A. The department shall notify the program or facility administrator of [ (i) ] the date, time, and location the director or designee will take certification action relating to the program's or facility's certification audit [ and (ii) any recommendation of the audit team regarding the program's or facility's certification status. ] The program or facility administrator shall have the right to appear in person or by counsel or other qualified representative when the director or designee considers the audit report and makes a certification decision. [ The program or facility administrator shall be provided notice of the right to appear 10 business days prior to the director's or designee's consideration of the audit report and final certification determination. ]

B. A conditional certification for up to six months will be issued to a new program or a newly opened facility that:

1. Demonstrates 100% compliance with (i) all critical regulatory requirements and (ii) any physical plant regulatory requirements;

2. Demonstrates at least 90% compliance with all noncritical regulatory requirements [ and has an acceptable corrective action plan ]; [ and ]

[ 3. Has acceptable corrective action plans for all noncompliances; and

4. 3. ] Has no unresolved health, welfare, or safety violations.

C. Upon review of the audit findings and any acceptable corrective action plans, the director or designee [ may shall ] take the following certification actions:

1. If the certification audit finds the program or facility in [ (i) ] 100% compliance with all regulatory requirements [ or (ii) less than 100% with a corrective action plan demonstrating the program or facility is in 100% compliance ], the director or designee shall certify the facility for three years.

2. If the certification audit finds the program or facility in less than 100% compliance with all regulatory requirements and [ there (i) are no health, welfare, or safety violations and (ii) is an acceptable corrective action plan for any finding of deficiency a subsequent status report, completed prior to the certification action, finds 100% compliance on all regulatory requirements ], the director or designee shall certify the facility for a specific period of time, up to three years.

3. If the certification audit finds the program or facility in less than 100% compliance with all [ critical ] regulatory requirements [ and there is a health, welfare, or safety violation with an acceptable corrective action plan for any finding of deficiency, the director or designee shall continue the program's or facility's current certification for a specific period of time, with a status report to be provided within a specified period of time, not to exceed six months. or less than 90% on all noncritical regulatory requirements or both, and a subsequent status report, completed prior to the certification action, finds 100% compliance on all critical regulatory requirements and 90% or greater compliance on all noncritical regulatory requirements, the program or facility shall be certified for a specified period of time, up to three years. ]

[ a. If the status report indicates no continued areas of noncompliance, the director or designee shall certify the facility for up to three years, subject to the provisions of subdivision C 7 of this section.

b. If the status report indicates any continued area of noncompliance, none of which is a health, welfare, or safety violation, the director or designee shall continue the program's or facility's certification with a status report required within a specific period of time, not to exceed six months.

(1) If the status report indicates no continued areas of noncompliance, the director or designee shall certify the program or facility for up to three years, subject to the provisions of subdivision C 7 of this section.

(2) If any area of noncompliance continues thereafter, the program or facility shall be placed on probationary certification status, subject to the applicable provisions of subdivision C 5 of this section.

c. If the status report indicates any continued area of noncompliance, any of which are health, welfare, or safety violations, the director or designee shall place the program or facility on probationary certification status, subject to the provisions of subdivision C 5 of this section.

4. If the certification audit finds the program or facility in less than 100% compliance and there are health, welfare, or safety violations without an acceptable corrective action plan for any finding of deficiency, the director or designee shall place the program or facility on probationary certification status, subject to the provisions of subdivision C 5 of this section.

4. If the certification audit finds the program or facility in less than 100% compliance with all critical regulatory requirements or less than 90% on all noncritical regulatory requirements or both, and a subsequent status report, completed prior to the certification action, finds less than 100% compliance on all critical regulatory requirements or less than 90% compliance on all noncritical regulatory requirements or both, the program or facility shall be subject to the following actions:

a. If there is an acceptable corrective action plan and no conditions or practices exist in the program or facility that pose an immediate and substantial threat to the health, welfare, or safety of the residents, the program's or facility's certification shall be continued for a specified period of time up to one year with a status report completed for review prior to the extension of the certification period.

(1) If the status report results find the program or facility in 100% compliance on all critical regulatory requirements and 90% or greater compliance on all noncritical regulatory requirements, the program or facility shall be certified for a specified period of time, up to three years, retroactive to the date upon which the prior certification was scheduled to expire.

(2) If the status report results find that the program or facility continues to be at less than 100% compliance on the critical regulatory requirements or less than 90% compliance on all noncritical regulatory requirements, the program or facility shall be placed on probationary certification status for a specified period of time, up to one year.

b. If there is not an acceptable corrective action plan or there is a health, welfare, or safety violation or both, the program or facility shall be placed on probationary certification status for a specified period of time up to one year or decertified.

5. Whenever a program or facility is placed on probationary certification status, a status report shall be completed prior to the expiration of the probationary certification period.

a. If the status report results find the program or facility in 100% compliance on all critical regulatory requirements and 90% or greater compliance on all noncritical regulatory requirements, the program or facility shall be certified for a specified period of time, up to three years retroactive to the date upon which the prior certification was scheduled to expire.

b. If the status report results find the program or facility continues to be at less than 100% compliance on the critical regulatory requirements or less than 90% compliance on all noncritical regulatory requirements, the program or facility shall be decertified.

5. 6. ] When a program or facility is placed on probationary certification status, (i) the director or designee shall, taking into account the program's or facility's history of compliance with regulatory requirements, specify the duration of the probationary certification status and (ii) the department and program or facility shall provide a status report to the board at all meetings for the duration of this status.

a. If the status report indicates no continued areas of noncompliance, the director or designee shall certify the facility for up to three years, subject to the provisions of subdivision [ C 7 8 ] of this [ section subsection ].

b. If any area of noncompliance continues thereafter, the director or designee may (i) continue the probationary certification status, (ii) decertify the program or facility as provided for in 6VAC35-20-120, or (iii) take any other action provided for by law.

[ 6. 7. ] If the certification audit report indicates an immediate threat to the health, welfare, or safety to the residents of a facility, notwithstanding the foregoing provisions, the director or designee may decertify the program or facility as provided for in subsection [ E D ] of this section and 6VAC35-20-120 or take any other action provided for by law.

[ 7. 8. ] If a program's or facility's certification status is continued after the initial period expires, the subsequent certification will be retroactive to the date of expiration, unless the director or designee specifically issues a certification with different terms.

[ D. The director or designee may, at any time, change a program's or facility's certification status upon notification of any noncompliance with any regulatory requirements.

E. D. ] Any program or facility, regardless of current certification status, may be decertified or denied certification when:

1. The program or facility has an unacceptable level of compliance [ , ] as provided in [ the applicable guidance document department procedures, ] with applicable regulatory requirements without acceptable corrective action plans to address deficiencies;

2. The program or facility, if on probation or administrative probation, has not corrected the circumstances that were cited in placing the program or facility on probation or administrative probation to the point that the program or facility would qualify for at least conditional certification;

3. The program's or facility's staff have [ knowingly ] (i) committed, permitted, aided or abetted any illegal act in the program or facility [ resulting in a criminal conviction ]; (ii) violated child abuse or neglect laws; (iii) deviated significantly from the program or services for which a certificate was issued without prior approval from the director or designee; (iv) failed to correct any such deviations within the time specified by the director or designee; or (v) falsified records [ , and the facility administrators knew or should have known and have failed (i) to report the actions and (ii) to take immediate remediating actions ]; or

4. If the program or facility fails to adequately correct the health, welfare, or safety violation per 6VAC35-20-36.1.

[ F. E. Certification decisions may be issued outside the requirements of subsections C and D of this section under the following circumstances:

1. The director may consider any aggravating and mitigating circumstances affecting the facts resulting in any finding of noncompliance, including, but not limited to, the history of the facility and the ability of the facility to predict and control the conditions resulting in the noncompliance. In such circumstances, the director may operate outside the requirements of subsection C of this section.

2. When considering whether to place a facility on probationary certification status or to decertify a program or facility due to a finding of noncompliance on a critical regulatory requirement, the director may consider whether the facility (i) had control over and knowledge of the circumstances, behaviors, or conditions leading to the finding and (ii) took appropriate steps to immediately rectify the situation. In such cases, the director may continue the certification in lieu of taking those actions.

F. ] Once the director or designee takes certification action, the department shall issue a certificate or letter clearly identifying the program or facility, the certification status, and the period of time during which the certification will be effective unless the certificate is revoked or surrendered sooner. The program or facility administrator shall be informed, briefly and generally, of the factual or procedural basis when any program or facility is issued a probationary certification or is decertified.

G. A program's or facility's status shall remain in effect until subsequent action by the director or designee.

6VAC35-20-110. Notice of board certification action.

A. Within two weeks of any certification action, a designated officer or agent of the board the director or designee shall send formal notice of the board certification action to:

1. The program or facility administrator;

2. The program's sponsoring locality, commission or private operator, as applicable or facility's supervisory or governing authority; and

3. Designated department personnel; and

4. 3. Other state and local authorities, as appropriate to the specific circumstances.

B. The program shall post the certificate or letter issued by the board in a conspicuous place in the facility or program offices where it is visible to the public.

C. All variances approved by the board shall be made available at the program site to certification audit teams and department personnel conducting on-site visits.

6VAC35-20-115. Board review of programs and facilities found in noncompliance.

A. When a program or facility is found in noncompliance with one or more regulatory requirements, the audit report with a statement of the director's or designee's certification action taken shall be placed on the agenda at the next regularly scheduled board meeting for oversight and review. The department shall provide the program or facility administrator with notice of the date and time of the board meeting.

B. Whenever a facility is found in noncompliance with one or more regulatory requirements, the board may enter an order, pursuant to § 16.1-309.9 B of the Code of Virginia, prohibiting or limiting the placement of children in the program or facility or take any other action provided by law. In addition to the reports required by this section and 6VAC35-20-100, the board may request the department or the program or facility administrator to provide a status update or report at subsequent board meetings.

6VAC35-20-120. Actions following decertification or denial of certification.

A. When a program or facility operated by the department is decertified or denied certification, the program administrator will take whatever actions are necessary to qualify the program for at least a conditional certification within 90 days. If the program does not qualify for at least conditional certification within 90 days, the department [ shall take remedial action and ] may choose to close the program or facility or relocate the residents. The procedure for such action shall be in compliance with all board, department, state and federal regulations, policies, or requirements of law. If after 90 days the program has not met the requirements for at least conditional certification and the department has not closed the program, the board shall recommend to the Governor and the Secretary of Public Safety appropriate action to be taken under the circumstances.

1. A report shall be sent to the board within 90 [ calendar ] days after the decertification or denial detailing the actions taken by the department to (i) bring the program or facility into compliance with all regulatory requirements and (ii) protect the health, welfare, or safety of the residents.

2. If after 90 [ calendar ] days the program or facility has not met the requirements for at least conditional certification and the department has not closed the program or facility, the board shall recommend to the Governor and the Secretary of Public Safety appropriate action to be taken under the circumstances.

B. When a program or facility that is locally, regionally, or privately operated is decertified or denied certification, the board and the department may take any and all of the following actions as appropriate to the circumstances:

1. The [ sponsor facility supervisory and the governing authority ] may be required to reorganize the program structure or take necessary personnel action or any other steps as may be necessary to qualify the program or facility for at least a conditional certification within 90 [ calendar ] days; and.

2. The Director of the Department director or designee may, as applicable, reduce or suspend funding to the program or facility in accordance with §§ 16.1-322.1, § 16.1-309.9 C, or § 66-30 of the Code of Virginia or may withdraw the approval required by § 16.1-249 A (3) and (4) of the Code of Virginia; and.

3. The board may enter an order, pursuant to § 16.1-309.9 B of the Code of Virginia, prohibiting or limiting the placement of children in the program or facility.

4. The department [ may shall ] not utilize facilities [ for residential placements ] that are decertified or denied certification.

6VAC35-20-150. Mandatory standards Critical regulatory requirements for juvenile residential facilities.

The following standards, selected from Standards for Juvenile Residential Facilities (6VAC35-140) and Standards for Interdepartmental Regulation of Children's Residential Facilities (22VAC42), are designated as "mandatory" as defined in 6VAC35-20-10. Programs that are subject to these standards must be in 100% compliance with the following standards in order to be approved to operate. Failure to comply with these mandatory standards will result in enforcement actions in accordance with the Code of Virginia and as set forth in this chapter.

1. 6VAC35-140-190

2. 6VAC35-140-340

3. 6VAC35-140-460

4. 6VAC35-140-660

5. 6VAC35-140-680

6. 6VAC35-140-690

7. 22VAC42-10-190

8. 22VAC42-10-300

9. 22VAC42-10-330 A, B and E

10. 22VAC42-10-490 B and C

11. 22VAC42-10-700 A and B

12. 22VAC42-10-710 B through I

13. 22VAC42-10-720

14. 22VAC42-10-730 A and C

15. 22VAC42-10-800

16. 22VAC42-10-960 C and D

17. 22VAC42-10-970

18. 22VAC42-10-1000.

[ The board shall designate which regulatory requirements will be defined as critical regulatory requirements.

A. The board has the sole authority for designating critical regulatory requirements. The board shall identify the designated critical regulatory requirements at the first board meeting after the final regulation is published in the Virginia Register.

B. The designated critical regulatory requirements may be amended by a majority of the board at a regularly scheduled board meeting only when (i) the proposed change was raised at a board meeting but not voted upon and a date for final consideration and voting is set at that meeting; (ii) notice of the proposed change is posted with the notice of board meeting designated for discussion and voting; (iii) consideration of the change is placed on the board meeting agenda at which a vote is anticipated; and (iii) written notice is provided to the facility administrators prior to the board meeting at which the vote is anticipated.

C. A request to review the critical regulatory requirements can be made by any person at any time.

D. The list of designated critical regulatory requirements shall be posted on the department's website at http://www.djj.virginia.gov. ]

Part 3 III
VJCCCA Programs and Offices on Youth Program Audits

6VAC35-20-200. Monitoring of VJCCCA programs or offices on youth.

The department shall develop a schedule for monitoring all VJCCCA programs or offices on youth that shall provide for at least one scheduled on-site VJCCCA program or office on youth audit every two years. Whenever deemed necessary or appropriate, additional monitoring visits or reviews may be [ schdduled scheduled ].

6VAC35-20-210. VJCCCA programs and offices on youth self-evaluations.

A. All VJCCCA programs and offices on youth shall, in accordance with department procedures or manuals, do the following:

1. Conduct an annual self-evaluation; and

2. Provide the department with a written summary of (i) the self-evaluation process and (ii) the findings of the self-evaluation.

B. The department shall schedule each VJCCCA program or office on youth to conduct the self-evaluation and complete the report.

C. The department shall review each VJCCCA program's or office on youth's self-evaluation report and provide feedback to the VJCCCA program [ of or ] office on youth.

6VAC35-20-220. VJCCCA program and office on youth audits.

A. During the program audit, the VJCCCA program or office on youth shall demonstrate an acceptable level of compliance, as provided in this chapter, with all (i) statutory requirements; (ii) the approved local plan; (iii) applicable regulatory requirements; and (iv) applicable department procedures or manuals.

B. The burden of proving compliance with the applicable requirements rests with the program staff.

C. Any finding of noncompliance shall be documented.

6VAC35-20-230. VJCCCA program and office on youth audit findings.

A. Upon completion of the VJCCCA program or office on youth audit, the VJCCCA program or office on youth audit findings shall be reported to the VJCCCA program plan contact or office on youth program director along with a copy to the individual with supervisory authority over that individual.

B. The VJCCCA program plan contact or office on youth program director may appeal the VJCCCA program or office on youth audit findings to the director or designee.

C. The department will monitor the progress of the VJCCCA program or office on youth in correcting the identified noncompliance through subsequent documentation and monitoring visits.

6VAC35-20-240. Effect of VJCCCA program or office on youth noncompliance.

A. If the department determines that a VJCCCA program or office on youth is not in [ substantial ] compliance, it may suspend all or any portion of the VJCCCA program's or office on youth's funding until there is compliance as provided in subsection C of § 16.1-309.9 of the Code of Virginia.

B. The department shall notify the person responsible for the daily administration of the VJCCCA program or office on youth of the intent to withhold funding prior to such withholding. The notification shall include the justification for the intended withholding and any corrective actions the VJCCCA program or office on youth must complete.

C. The VJCCCA program or office on youth may appeal to the director or designee the withholding of funding, in writing, within 10 business days of receiving notice of the department's intent to withhold the funding.

[ DOCUMENTS INCORPORATED BY REFERENCE (6VAC35-20)

Guidance Document: Self-Audits/Evaluations, September 2013, Department of Juvenile Justice ]