Title of Regulation: 22VAC40-910. General Provisions for Maintaining and Disclosing Confidential Information of Public Assistance, Child Support Enforcement, and Social Services Record (amending 22VAC40-910-10, 22VAC40-910-80, 22VAC40-910-90).

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

Public Hearing Information: No public hearings are scheduled.

Public Comment Deadline: December 18, 2013.

Effective Date: January 2, 2014.

Agency Contact: Treina Owen, Board Liaison, Department of Social Services, 801 East Main Street, Richmond, VA 23219, telephone (804) 726-7903, FAX (804) 726-7906, or email treina.owen@dss.virginia.gov.

Basis: Section 63.2-217 of the Code of Virginia gives the State Board of Social Services the responsibility to make rules and regulations to carry out the purposes of social services programs. Sections 63.2-102 through 63.2-105 of the Code of Virginia govern confidentiality of public assistance and social services records and information.

Purpose: Public assistance, child support enforcement, and social services programs are essential to protecting the health, safety, and welfare of citizens. This regulation assists these programs in protecting the health, safety, and welfare of citizens by ensuring that public assistance, child support enforcement, and social services confidential client information is protected and released only according to federal and state laws and regulations. This regulation provides separate sections for public assistance, child support enforcement, and social services programs. Each section includes the applicable statutory and regulatory citations or provisions, or both, related to confidentiality. The regulation helps ensure compliance with confidentiality requirements, thereby affording greater protection of privacy to all Virginians.

The three amendments to the regulation are necessary to clarify a key definition and update references to applicable regulation.

Rationale for Using Fast-Track Process: The agency does not expect the amendments to the regulation to be controversial. The change to the definition of "research" better frames the term as it is used in the regulation, was recommended by the Office of Attorney General, and is within the agency's authority. Replacing references to a repealed regulation is necessary in order to keep this regulation current. The three amendments are not anticipated to be problematic in any way.

Substance: In 22VAC40-910-10, the current definition of "research" is broad and may allow for the disclosure of public assistance information in violation of federal confidentiality regulations. As recommended by the Office of Attorney General, the amendment tightens the definition to reference research to contribute to general knowledge related to specific programs.

22VAC40-910-80 relates to confidential client information pertaining to public assistance. 22VAC40-910-80 D provides that release of client records to law enforcement and Commonwealth's and county or city attorneys is governed by 22VAC40-320 (Disclosure of Information to Law-Enforcement Officers in the Aid to Families with Dependent Children (AFDC) Program). 22VAC40-320 has been repealed. The amendment replaces reference to the repealed regulation with the appropriate federal citation, 7 CFR 272.1(c)(1).

22VAC40-910-90 relates to confidential client information pertaining to child support enforcement. 22VAC40-910-90 D 6 provides that release of client records to law enforcement and Commonwealth's and county or city attorneys is governed by 22VAC40-320 (Disclosure of Information to Law-Enforcement Officers in the Aid to Families with Dependent Children Program). 22VAC40-320 has been repealed. The amendment replaces reference to the repealed regulation with the appropriate Virginia Administrative Code reference, 22VAC40-880-520 B.

Issues: The primary advantage of the regulation overall to the public, the Department of Social Services, and the Commonwealth is that it ensures that public assistance, child support enforcement, and social services client information is protected and released only according to federal and state laws and regulations. The three amendments facilitate the accuracy and effectiveness of the regulation and allow for continued enforcement of the regulation.

The agency is not aware of disadvantages to the public or Commonwealth.

Small Business Impact Report of Findings: This regulatory action serves as the report of findings of the regulatory review pursuant to § 2.2-4007.1 of the Code of Virginia.

Department of Planning and Budget's Economic Analysis:

Summary of the Proposed Amendments to Regulation. The State Board of Social Services (Board) proposes to amend its regulations that govern the handling of confidential information to update obsolete administrative code references and to add clarifying language to the definition of research.

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

Estimated Economic Impact. Current regulations have two outdated references to another chapter in the Virginia Administrative Code. The Board now proposes to delete these obsolete references and replace them with, respectively, a reference to the Code of Federal Regulations and a reference to another of the Board's chapters in the Virginia Administrative Code. The Board also proposes to clarify that, for the purposes of these regulations, research must relate to specific social services programs.

No affected entity is likely to incur any additional costs on account of the three proposed changes to these regulations. To the extent that these changes eliminate now incorrect references and allow a better understanding of how the Board defines research, affected entities will get a benefit from the clarity added.

Businesses and Entities Affected. The Department of Social Services (DSS) reports these proposed regulatory changes will affect all individuals who have disclosed confidential or identifying information to any (Local or State) Department of Social Services.

Localities Particularly Affected. No localities 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 14 (10). 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 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 amendments (i) tighten the definition of "research" to ensure that disclosure of confidential information is done within the confines of federal confidentiality regulations and (ii) replace references to repealed 22VAC40-320 with applicable current citations.

22VAC40-910-10. Definitions.

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

"Agency" means a local department of social services.

"Agent" means any individual authorized to act on behalf of or under the direction of the Commissioner of the Virginia Department of Social Services or State Board of Social Services for the sole purpose of accessing confidential client records in the administration of public assistance, child support enforcement, or social services programs.

"Client" means any applicant for or recipient of public assistance or social services or any individual about whom the child support enforcement division maintains information.

"Client record" or "client information" means any identifying or nonidentifying information, including information stored in computer data banks or computer files relating to a client.

"Department" means the Virginia Department of Social Services.

"Human research" means any formal and structured evaluation involving individuals in a special project, program, or study.

"Legally responsible person" means (i) the biological or adoptive parent or other relative with whom the child primarily resides and who has legal custody of the child; (ii) the biological or adoptive parent with whom the child does not primarily reside and who has legal custody of the child; or (iii) a committee or guardian appointed by a court to represent the interest of a client.

"Near fatality" means an act that, as certified by a physician, places the child in serious or critical condition. Serious or critical condition is a life-threatening condition or injury.

"Provider" means any person, agency or organization providing public assistance, child support enforcement services, or social services through a contract or an agreement with the department or agency.

"Public assistance" means Temporary Assistance for Needy Families (TANF); auxiliary grants to the aged, blind and disabled; medical assistance; energy assistance; food stamps; employment services; child care; and general relief.

"Research" means a systematic investigation, including research development, testing, and evaluation, designed to develop or contribute to general knowledge related to specific programs, including research for the development of new knowledge or techniques that would be useful in the administration of public assistance, child support enforcement, or social services programs.

"Social services program" means foster care, adoption, adoption assistance, adult services, adult protective services, child protective services, domestic violence services, family preservation, or any other services program implemented in accordance with regulations promulgated by the State Board of Social Services.

22VAC40-910-80. Confidential client information pertaining to public assistance.

A. Confidentiality of client information of public assistance programs is assured by §§ 63.2-102 and 63.2-805 G of the Code of Virginia.

B. Information may be released only for a purpose directly connected with the administration of a public assistance program, except as herein provided or pursuant to §§ 63.2-102 and 63.2-805 G of the Code of Virginia.

C. Purposes directly related to the administration of a public assistance program include but are not limited to:

1. Establishing eligibility;

2. Determining the amount of public assistance;

3. Providing services for public assistance clients; and

4. Conducting or assisting in an investigation or prosecution of a civil or criminal proceeding related to the administration of the public assistance program.

D. Release of client records to law-enforcement agencies and Commonwealth's and county or city attorneys is governed by 22VAC40-320 7 CFR 272.1(c)(1).

22VAC40-910-90. Confidential client information pertaining to child support enforcement.

A. Confidentiality of child support enforcement client information is assured by §§ 63.2-102 and 63.2-103 of the Code of Virginia.

B. Information may be released only for a purpose directly connected with the administration of the child support enforcement program, except as herein provided or pursuant to §§ 63.2-102, 63.2-103, 63.2-1906 and 63.2-1940 of the Code of Virginia.

C. Purposes directly related to the administration of the child support enforcement program include but are not limited to:

1. Determining the amount of child support;

2. Providing child support enforcement services; and

3. Conducting or assisting in an investigation or prosecution of a civil or criminal proceeding related to the administration of the child support enforcement program.

D. The following regulatory provisions provide guidance on the release of child support enforcement client information:

1. Entities to whom the Division of Child Support Enforcement can release client information is governed by 22VAC40-880-520;

2. The release of client information to and from the Internal Revenue Service is governed by 22VAC40-880-530;

3. Request for client information from the general public is governed by 22VAC40-880-540;

4. Requests for client information from parents is governed by 22VAC40-880-550;

5. Release of health insurance information is governed by 22VAC40-880-560; and

6. Release of client records to law-enforcement agencies and Commonwealth's and county or city attorneys is governed by 22VAC40-320 22VAC40-880-520 B.