Vol. 32 Iss. 6 - November 16, 2015

Chapter 185
Fast-Track Regulation

Title of Regulation: 22VAC40-185. Standards for Licensed Child Day Centers (amending 22VAC40-185-40).

Statutory Authority: §§ 63.2-217 and 63.2-1734 of the Code of Virginia.

Public Hearing Information: No public hearings are scheduled.

Public Comment Deadline: December 16, 2015.

Effective Date: July 1, 2017.

Agency Contact: Sharon Lindsay, Department of Social Services, 801 East Main Street, Richmond, VA 23219, telephone (804) 726-7167, FAX (804) 726-7132, or email

Basis: Section 63.2-217 of the Code of Virginia provides the general authority for the State Board of Social Services to adopt regulations as may be necessary to carry out the purpose of Title 63.2 of the Code of Virginia. Section 63.2-1734 of the Code of Virginia authorizes the board to adopt regulations and requirements for licensed child day centers and mandates promulgation of regulations for the activities, services, and facilities to be employed by persons and agencies required to be licensed, which shall be designed to ensure that such activities, services, and facilities are conducive to the welfare of the children under the custody or control of such persons or agencies.

Purpose: The proposed amendment to 22VAC40-185 updates a reference to a section of the Code of Virginia. There is no impact on public health, safety, or welfare, as the amendment merely updates a Code of Virginia reference.

Rationale for Using Fast-Track Process: Executive Order 17 for the development and review of state agency regulations allows state agencies to use a fast-track rulemaking process to expedite regulatory changes that are expected to be noncontroversial. The Office of the Attorney General advised the use of the fast-track process to make a minor amendment to a Code of Virginia reference. This action is not controversial.

Substance: The amendment updates a Code of Virginia reference related to background check requirements for licensed child day centers. The Code of Virginia reference is replaced with another section of the Code of Virginia effective July 1, 2017.

Issues: The primary advantage of this regulatory action for the public and for the Commonwealth is that it will provide an accurate Code of Virginia reference so that providers and the public will have the correct citation. There are no disadvantages to the public or the Commonwealth.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. The proposed change updates the reference to the applicable Code of Virginia background check requirements.

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

Estimated Economic Impact. The 2015 General Assembly enacted House Bill 1570/Senate Bill 1168 that added Section 63.2-1721.1 to the Code of Virginia. This section establishes the requirements licensed child day centers must follow in conducting background checks effective July 1, 2017.

The proposed change merely updates the current reference in the regulation to the applicable statutory background check requirements that will be effective July 1, 2017. The proposed regulation is beneficial in the sense that it will update the reference to the correct applicable statutory requirements. No other significant economic effect is expected.

Businesses and Entities Affected. The proposed regulation applies to 2,498 licensed child day centers.

Localities Particularly Affected. No locality is particularly affected.

Projected Impact on Employment. No impact on employment is expected.

Effects on the Use and Value of Private Property. No impact on the use and value of private property is expected.

Real Estate Development Costs. No impact on real estate development costs is expected.

Small Businesses:

Definition. Pursuant to § 2.2-4007.04 of the Code of Virginia, small business is defined as "a business entity, including its affiliates, that (i) is independently owned and operated and (ii) employs fewer than 500 full-time employees or has gross annual sales of less than $6 million."

Costs and Other Effects. The proposed amendment does not impose costs or other effects on small businesses.

Alternative Method that Minimizes Adverse Impact. No adverse impact on small businesses is expected.

Adverse Impacts:

Businesses: The proposed amendment does not adversely affect non-small businesses.

Localities: The proposed amendment does not adversely affect localities.

Other Entities: The proposed amendment does not adversely affect other entities.

Agency's Response to Economic Impact Analysis: The Department of Social Services reviewed the economic impact analysis prepared by the Department of Planning and Budget and concurs.


Pursuant to Chapters 758 and 770 of the 2015 Acts of Assembly, the amendment updates a Code of Virginia section reference related to background check requirements for licensed child day centers by replacing "§ 63.2-1721" with "§ 63.2-1721.1" effective July 1, 2017.

22VAC40-185-40. Operational responsibilities.

A. Applications for licensure shall conform with Chapters 17 (§ 63.2-1700 et seq.) and 18 (§ 63.2-1800 et seq.) of Title 63.2 of the Code of Virginia and the regulation entitled General Procedures and Information for Licensure, 22VAC40-80.

B. Pursuant to §§ 63.2-1719 and 63.2-1721 63.2-1721.1 and the regulation entitled Background Checks for Child Welfare Agencies, 22VAC40-191, the applicant and any agent at the time of application who is or will be involved in the day-to-day operations of the center or who is or will be alone with, in control of, or supervising one or more of the children, shall be of good character and reputation and shall not be guilty of an offense. Offenses are barrier crimes, conviction of any other felony not included in the definition of barrier crime unless five years have elapsed since conviction, and a founded complaint of child abuse or neglect.

C. The sponsor shall afford the commissioner or his agents the right at all reasonable times to inspect facilities and to interview his agents, employees, and any child or other person within his custody or control, provided that no private interviews may be conducted with any child without prior notice to the parent of such child.

D. The license shall be posted in a place conspicuous to the public (§ 63.2-1701 of the Code of Virginia).

E. The operational responsibilities of the licensee shall include, but not be limited to, ensuring that the center's activities, services, and facilities are maintained in compliance with these standards, the center's own policies and procedures that are required by these standards, and the terms of the current license issued by the department.

F. Every center shall ensure that any advertising is not misleading or deceptive as required by § 63.2-1713 of the Code of Virginia.

G. The center shall meet the proof of child identity and age requirements as stated in § 63.2-1809 of the Code of Virginia.

H. The sponsor shall maintain public liability insurance for bodily injury for each center site with a minimum limit of at least $500,000 each occurrence and with a minimum limit of $500,000 aggregate.

1. A public sponsor may have equivalent self-insurance that is in compliance with the Code of Virginia.

2. Evidence of insurance coverage shall be made available to the department's representative upon request.

I. The center shall develop written procedures for injury prevention.

J. Injury prevention procedures shall be updated at least annually based on documentation of injuries and a review of the activities and services.

K. The center shall develop written playground safety procedures which shall include:

1. Provision for active supervision by staff to include positioning of staff in strategic locations, scanning play activities, and circulating among children; and

2. Method of maintaining resilient surface.

L. Hospital-operated centers may temporarily exceed their licensed capacity during a natural disaster or other catastrophe or emergency situation and shall develop a written plan for emergency operations, for submission to and approval by the Department of Social Services.

M. When children 13 years or older are enrolled in the program and receive supervision in the licensed program, they shall be counted in the number of children receiving care and the center shall comply with the standards for these children.

VA.R. Doc. No. R16-4510; Filed October 26, 2015, 10:51 a.m.