Title of Regulation: 6VAC35-101. Regulation Governing Juvenile Secure Detention Centers (amending 6VAC35-101-420).

Statutory Authority: §§ 16.1-322.7 and 66-10 of the Code of Virginia.

Public Hearing Information: No public hearings are scheduled.

Public Comment Deadline: January 13, 2016.

Effective Date: January 30, 2016.

Agency Contact: Janet Van Cuyk, Regulatory Coordinator, Department of Juvenile Justice, 600 East Main Street, 20th Floor, Richmond, VA 23219, telephone (804) 588-3879, FAX (804) 371-6490, or email janet.vancuyk@djj.virginia.gov.

Basis: Section 66-4 of the Code of Virginia creates the board, while § 66-10 of the Code of Virginia provides that the board shall have the power and duty to promulgate such regulations as may be necessary to carry out the provisions of Title 66 of the Code of Virginia and the other laws of the Commonwealth. Per § 66-24 D of the Code of Virginia, the board is required to promulgate regulations for licensure or certification of community group homes or other residential facilities that contract with or are rented for the care of juveniles in direct state care. The board's regulations shall address the services required to be provided in such facilities as it may deem appropriate to ensure the welfare and safety of the juveniles. In addition, the board's regulations "shall include, but need not be limited to (i) specifications for the structure and accommodations of such facilities according to the needs of the juveniles to be placed in the home or facility; (ii) rules concerning allowable activities, local government- and group home- or residential care facility-imposed curfews, and study, recreational, and bedtime hours; and (iii) a requirement that each home or facility have a community liaison who shall be responsible for facilitating cooperative relationships with the neighbors, the school system, local law enforcement, local government officials, and the community at large."

Purpose: During the drafting of Regulation Governing Juvenile Secure Detention Centers (6VAC35-101) an exemption for secure facilities was erroneously deleted in the regulation that had been provided in the previous regulation Standards for Interim Regulation of Children's Residential Facilities (6VAC35-51-460 D). This section stated: "There shall be one toilet, one hand basin, and one shower or tub for every four residents in any building constructed or structurally modified after July 1, 1981, except secure custody facilities. Facilities licensed after December 28, 2007, shall comply with the one-to-four ratio." The previous regulations granted secure custody facilities built prior to December 28, 2007, an exception to the one-to-four ratio because these facilities were built when the construction standard was one toilet, one hand basin, and one shower or tub for every eight residents. The Standards for Interim Regulation of Children's Residential Facilities 6VAC35-51 were effective September 17, 2008, through December 31, 2013.

The current regulation governing juvenile secure detention centers became effective January 1, 2014, and does not include the exemption for secure facilities built prior to 2007. Without this exemption, secure custody facilities constructed after July 1, 1981, are required to conform to the one-to-four ratio. However, the majority of secure facilities across the Commonwealth cannot meet this regulatory requirement since they were constructed using a one-to-eight ratio that was required by construction speculations in effect from July 1, 1981, through December 27, 2007. It will be cost prohibitive for facilities to meet the requirements set forth in the current regulations.

The fast-track rulemaking process is requested to amend the language in 6VAC35-101-420 to include the exemption language. The amended language, if approved, will be substantially similar to the original language drafted in 6VAC35-51-460 that grandfathers in those facilities certified prior to December 28, 2007, that were constructed to conform to the one-to-eight ratio. All of other sections of the regulation will remain unchanged.

The amendments have no known no impact on the public health, safety, or welfare.

Rationale for Using Fast-Track Process: It is anticipated that the amendment to 6VAC35-101-420 will be noncontroversial as the proposed change reinserts language that was erroneously deleted in this regulatory action that superseded the regulatory provision with the exemption. The department and the board are of the understanding that this action is correcting a scrivener's error. There was no public comment in opposition to the proposed amendment. The juvenile secure detention center administrators, the department's certification unit, the department's administration, and the board support the proposed amendment as noncontroversial. Additionally, on January 7, 2014, the board granted all juvenile secure detention centers built prior to December 28, 2007, a variance to the one-to-four ratio required in 6VAC35-101-420 until such time as the regulations were amended, with the understanding that a similar regulatory action be pursued to reincorporate the exemption for juvenile secure detention centers.

Substance: The proposed amendment changes the date for which juvenile secure detention centers are required to comply with the requirement to have one toilet, one hand basin, and one shower or tub for every four residents (one-to-four ratio) in any building constructed or structurally modified after July 1, 1981, to require only those buildings constructed or structurally modified after December 28, 2007, to meet the aforementioned one-to-four ratio.

Issues: The primary advantage of the proposed amendment is to correct a drafting error and to avoid a substantial financial burden and, thus, achieve a financial saving to the local governments operating secure juvenile detention centers. The localities will not have to fund the cost of labor and materials required to construct additional bathroom facilities in the 24 juvenile secure detention centers to meet the current regulatory requirements. In addition to the capital costs, there would likely be additional administrative costs associated with overtime hours for staff that would be required to monitor construction staff to comply with the regulatory requirement that staff monitor all situations in which outside personnel perform any kind of work in the immediate presence of residents. The bathroom facilities are located in the juvenile facility living area and construction in this space would be disruptive to the juvenile facility daily routines for the duration of the construction. There are no advantages or disadvantages to the public and no disadvantages in adopting the proposed change to the Commonwealth.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. The Board of Juvenile Justice proposes to amend building standards in its regulation that governs juvenile secure detention centers to insert an exemption to newer bathing facility standards. This exemption was in the regulation that was in effect until December 2013 and was unintentionally left out of the current superseding regulation.

Result of Analysis. Benefits likely outweigh costs for this proposed regulatory change.

Estimated Economic Impact. The former regulation for juvenile secure detention centers contained an exemption for secure detention facilities to a general building rule that specified that all juvenile justice facilities built or modified after July 1, 1981, contain at least one full bathroom (containing a toilet, wash basin and tub or shower) for every four residents. The exemption only applied the 4/1 ratio standard to secure facilities built or modified after December 28, 2007; facilities built or modified before December 28, 2007, were subject to a standard that specified one full bathroom for every eight residents. This exemption was inadvertently left out when a superseding regulation was promulgated in 2013. The Board now proposes to insert the exemption back into regulation so that secure detention facilities are not required to conform to the more stringent and costly standard.

There are currently 778 individuals housed in 24 locality-run juvenile secure detention centers. Any of these facilities that were built or modified between July 1, 1981, (when the new, more stringent standard went into general effect) and December 28, 2007, (when the new, more stringent standard applied under the exemption) will save the cost that would be incurred if they had to approximately double the number of full bathrooms in their facilities. Total cost per facility absent this proposed regulatory change would likely be more than $10,000¹ times the number of bathrooms that would need to be added. Given this estimate, affected localities' cost avoidance on account of reinserting the exemption into regulation will be considerable.

Businesses and Entities Affected. There are currently 24 locality-run juvenile secure detention centers in the Commonwealth. To the extent that any of these facilities were built or modified between July 1, 1981, and December 28, 2007, they will be affected by this proposed regulatory action.

Localities Particularly Affected. Localities that have juvenile secure detention facilities will be particularly affected by this proposed regulatory action.

Projected Impact on Employment. This proposed regulation is unlikely to affect employment in the Commonwealth.

Effects on the Use and Value of Private Property. This proposed regulation affects only public juvenile secure detention centers.

Small Businesses: Costs and Other Effects. This proposed regulation affects only public juvenile secure detention centers.

Small Businesses: Alternative Method that Minimizes Adverse Impact. This proposed regulation affects only public juvenile secure detention centers.

Real Estate Development Costs. This proposed regulatory action will allow affected Virginia localities to avoid likely large costs for having to modify existing juvenile secure detention centers.

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¹The Department of Professional and Occupational Regulation recently estimated that retrofitting a bathroom with just a toilet and a wash basin to a cosmetology establishment would cost approximately $10,000. It is likely safe to assume that it would cost much more than $10,000 to add a full bathroom to a facility where security during construction would be an issue.

Agency's Response to Economic Impact Analysis: The responsible Virginia Board of Juvenile Justice agency representatives have reviewed the Department of Planning and Budget (DPB) economic impact analysis. The agency is in agreement with DPB's analysis.

Summary:

The amendment changes which juvenile secure detention centers are required to comply with the requirement to have one toilet, one hand basin, and one shower or tub for every four residents from any building constructed or structurally modified after July 1, 1981, to only those buildings constructed or structurally modified after December 28, 2007.

6VAC35-101-420. Toilet facilities.

A. There shall be toilet facilities available for resident use in all sleeping rooms for each detention center constructed after January 1, 1998.

B. There shall be at least one toilet, one hand basin, and one shower or bathtub for every eight residents for detention centers constructed before July 1, 1981 on or before December 27, 2007. There shall be one toilet, one hand basin, and one shower or tub for every four residents in any building constructed or structurally modified after July 1, 1981 on or after December 28, 2007.

C. There shall be at least one bathtub in each facility.

D. The maximum number of staff members on duty in the living unit shall be counted in determining the required number of toilets and hand basins when a separate bathroom is not provided for staff.