Title of Regulation: 22VAC40-730. Investigation of Child Abuse and Neglect in Out of Family Complaints (amending 22VAC40-730-10, 22VAC40-730-20, 22VAC40-730-40, 22VAC40-730-70, 22VAC40-730-115, 22VAC40-730-120, 22VAC40-730-130; adding 22VAC40-730-140).

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

Public Hearing Information: No public hearings are scheduled.

Public Comment Deadline: August 7, 2019.

Effective Date: August 23, 2019.

Agency Contact: Shannon Hartung, Child Protective Services Program Manager, Department of Social Services, 801 East Main Street, Richmond, VA 23219, telephone (804) 726-7554, FAX (804) 726-7499, or email shannon.hartung1@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 administer social services in the Commonwealth under Chapter 15 (§ 63.2-1500 et seq.) of Title 63.2 of the Code of Virginia. Sections 63.2-1506, 63.2-1511, and 63.2-1516.1 of the Code of Virginia provide additional legal mandates for child protective services investigations in out of family settings.

Purpose: The regulatory action is essential to protect the health, safety, and welfare of citizens because it addresses provisions governing the investigation of child abuse and neglect in out of family settings. The regulation is being amended to be consistent with Child Protective Services (22VAC40-705), the Code of Virginia, and applicable federal law. The amendments update the regulation to provide clarification and conform with the requirements of "Form, Style, and Procedure Manual for Publication of Virginia Regulations."

Rationale for Using Fast-Track Rulemaking Process: The fast-track rulemaking process is appropriate for this regulatory action because the changes being made are simple and intended to update and clarify language in the regulation. It is unlikely anyone would oppose these changes.

Substance: The amendments to existing provisions and that add new provisions comport the regulation with 22VAC40-705, the Code of Virginia, and applicable federal law.

Substantive changes include:

• Updating the definition of "child day program" to mirror the language in § 63.2-100 of the Code of Virginia;

• Adding a definition of "child-placing agency" and "foster home";

• Updating the definition of "facility" to clarify that child day programs include both licensed and religiously-exempt programs;

• Updating language in the definition of "residential facility";

• Updating training requirements for staff qualified to conduct out of family (OOF) investigations;

• Adding specific language from § 63.2-1511 A of the Code of Virginia regarding investigations involving school employees;

• Repealing 22VAC40-730-120, Monitoring of cases for compliance;

• Adding 22VAC40-730-140 on the protocol for OOF investigations consistent with 22VAC40-705; and

• Adding specific language from § 63.2-1503 M of the Code of Virginia regarding the rights of an alleged abuser or neglector who has been criminally charged for the same conduct.

Issues: This regulatory action clarifies and updates existing language, which is an advantage to the public and to the local departments of social services who are required to use this regulation when conducting investigations of child abuse or neglect in OOF settings. There are no disadvantages to the public or the Commonwealth.

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

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. Following a periodic review,¹ the State Board of Social Services proposes to clarify regulatory language.

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

Estimated Economic Impact. The proposed changes do not modify any of the current standards or procedures, but clarify them. The changes include updating the definition of "child day program" to mirror the language in § 63.2-100 of the Code of Virginia; adding a definition of "child-placing agency" and "foster home"; updating the definition of "facility" to clarify that child day programs include both licensed and religiously-exempt programs; updating language in the definition of "residential facility"; updating language on training requirements for staff qualified to conduct out of family investigations to reflect current practices; adding specific language from § 63.2-1511 A of the Code of Virginia regarding out of family investigations involving school employees; repealing duplicative language regarding monitoring of cases for compliance; adding new language to reflect the existing protocol for investigations; and adding specific language from § 63.2-1503 M of the Code of Virginia regarding the rights of an alleged abuser or neglector who has been criminally charged for the same conduct. These proposed amendments would be beneficial in that they improve the clarity of requirements and procedures in effect.

Businesses and Entities Affected. This regulation sets out criteria and procedures for 120 local departments of social services on how they conduct out of family investigations. There were 1,288 out of family investigations conducted in fiscal year 2018.

Localities Particularly Affected. The proposed amendments would not disproportionately affect particular localities.

Projected Impact on Employment. The proposed amendments would not affect employment.

Effects on the Use and Value of Private Property. The proposed amendments would not affect the use and value of private property.

Real Estate Development Costs. The proposed amendments would not affect real estate development costs.

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 amendments would not affect costs for small businesses.

Alternative Method that Minimizes Adverse Impact. The proposed amendments would not adversely affect small businesses.

Adverse Impacts:

Businesses. The proposed amendments would not adversely affect businesses.

Localities. The proposed amendments would not likely affect localities.

Other Entities. The proposed amendments would not adversely affect other entities.

_______________________

¹http://townhall.virginia.gov/l/ViewPReview.cfm?PRid=1676

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

Summary:

Amendments (i) update the definition of "child day program" to mirror the language in § 63.2-100 of the Code of Virginia; (ii) add a definition of "child-placing agency" and a definition of "foster home"; (iii) update the definition of "facility" to clarify that child day programs include both licensed and religiously exempt programs; (iv) update the definition of "residential facility"; (v) update training requirements for staff qualified to conduct out of family investigations; (vi) add specific language from § 63.2-1511 A of the Code of Virginia regarding investigations involving school employees; (vii) repeal 22VAC40-730-120, which deals with monitoring out of family cases for compliance; (viii) add 22VAC40-730-140, which deals with the protocol for out of family investigations, consistent with 22VAC40-705; and (ix) add specific language from § 63.2-1503 M of the Code of Virginia regarding the rights of an alleged abuser or neglector who has been criminally charged for the same conduct.

Part I
Definitions

22VAC40-730-10. Definitions.

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

"Child day program" means a regularly operating service arrangement for children where, during the absence of a parent or guardian, a person or organization has agreed to assume responsibility for the supervision, protection, and well-being of children as defined in § 63.2-100 of the Code of Virginia a child younger than 13 years of age for less than a 24-hour period.

"Child-placing agency" means any person who places children in foster homes, adoptive homes, or independent living arrangements pursuant to § 63.2-1819 of the Code of Virginia or a local board that places children in foster homes or adoptive homes pursuant to §§ 63.2-900, 63.2-903, and 63.2-1221 of the Code of Virginia. Officers, employees, or agents of the Commonwealth, or any locality acting within the scope of their authority as such, who serve as or maintain a child-placing agency, shall not be required to be licensed.

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

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

"Foster home" means a residence licensed by a child-placing agency in which any child, other than a child by birth or adoption of such person, resides as a member of the household.

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

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

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

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

Part II
Policy

Article 1
Out of Family Investigation Policy

22VAC40-730-20. General.

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

Staff shall be determined to be qualified based on criteria identified completion of an out of family training course as approved by the department. All staff involved in investigating a valid complaint must be qualified.

This regulation is limited in scope to the topics contained herein in this chapter. All issues regarding investigations, findings, and appeals are found in Child Protective Services, 22VAC40-705, and as such are cross referenced and incorporated into and apply to out of family cases to the extent that they are not inconsistent with this regulation.

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

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

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

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

2. The CPS assigned child protective services (CPS) worker assigned to investigate and the appointed regulatory staff person will discuss their preliminary joint investigation plan.

a. The CPS worker and the regulatory staff person shall review their respective needs for information and plan the investigation based on when these needs coincide and can be met with joint interviews or with information sharing.

b. The investigation plan must keep in focus the policy requirements to be met by each party the CPS worker and regulatory authority as well as the impact the investigation will have on the facility's staff, the victim child or children, and the other children at the facility.

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

A. The CPS child protective services (CPS) worker shall initiate contact with the facility administrator or designee at the onset of the investigation.

B. The CPS worker shall inform the facility administrator or his designee of the details of the valid complaint. When the administrator or designee chooses to participate in the joint investigation, he will be invited to participate in developing the plan for investigation, including decisions about who is to be present in interviews. If the administrator or designee is the alleged abuser or neglector, this contact should be initiated with the individual's superior, which may be the board of directors, etc. If or if there is no superior, the CPS worker may use discretion in sharing information with the administrator so long as such disclosure is consistent with and does not conflict with law or regulation.

C. Arrangements are to be made for:

1. Necessary interviews;

2. Observations including the physical plant; and

3. Access to information, including review of pertinent policies and procedures.

D. The CPS worker shall keep the facility administrator or designee apprised of the progress of the investigation. In a joint investigation with a regulatory staff person, either party may fulfill this requirement.

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

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

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

1. In determining the validity of a report of suspected abuse or neglect pursuant to § 63.2-1511 of the Code of Virginia, the local department must consider whether the school employee used reasonable and necessary force. The use of reasonable and necessary force does not constitute a valid report If a teacher, principal, or other person employed by a local school board or employed in a school operated by the Commonwealth is suspected of abusing or neglecting a child in the course of his educational employment, the complaint shall be investigated in accordance with §§ 63.2-1503, 63.2-1505, and 63.2-1516.1 of the Code of Virginia. Pursuant to § 22.1-279.1 of the Code of Virginia, no teacher, principal, or other person employed by a school board or employed in a school operated by the Commonwealth shall subject a student to corporal punishment. However, this prohibition of corporal punishment shall not be deemed to prevent (i) the use of incidental, minor, or reasonable physical contact or other actions designed to maintain order and control; (ii) the use of reasonable and necessary force to quell a disturbance or remove a student from the scene of a disturbance that threatens physical injury to persons or damage to property; (iii) the use of reasonable and necessary force to prevent a student from inflicting physical harm on himself; (iv) the use of reasonable and necessary force for self-defense or the defense of others; or (v) the use of reasonable and necessary force to obtain possession of weapons or other dangerous objects or controlled substances or paraphernalia that are upon the person of the student or within the student's control. In determining whether the actions of a teacher, principal, or other person employed by a school board or employed in a school operated by the Commonwealth are within the exceptions provided in this subsection, the local department shall examine whether the actions at the time of the event that were made by such person were reasonable.

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

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

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

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

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

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

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

a. The identity of the person making the report.

b. Information provided by any law-enforcement official.

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

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

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

22VAC40-730-120. Monitoring of cases for compliance. (Repealed.)

A sample of cases will be reviewed by department staff to ensure compliance with policies and procedures.

Article 2
Local Staff Qualifications in Out of Family Investigations

22VAC40-730-130. Requirements.

A. In order to be determined qualified to conduct investigations in out of family settings, local CPS child protective services (CPS) workers shall meet minimum education standards established by the department including: 1. Documented competency in designated general knowledge and skills and specified out of family knowledge and skills; and 2. Completion completion of an out of family policy training course as approved by the department.

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

22VAC40-730-140. Protocol for out of family investigations.

For out of family investigations, the following shall be completed, which are consistent with 22VAC40-705:

1. The local department shall conduct a face-to-face interview with the alleged abuser or neglector.

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

3. The written notification shall include the information that the alleged abuser or neglector has the right to have an attorney or other representative of his choice present during his interviews.

4. If the alleged abuser or neglector has been arrested, statements, or any evidence derived therefrom, made to local department child protective services personnel, or to any person performing the duties of such personnel, by any person accused of the abuse, injury, neglect, or death of a child after the arrest of such person shall not be used in evidence in the case-in-chief against such person in the criminal proceeding on the question of guilt or innocence over the objection of the accused, unless the statement was made after such person was fully advised (i) of his right to remain silent; (ii) that anything he says may be used against him in a court of law; (iii) that he has a right to the presence of an attorney during any interviews; and (iv) that if he cannot afford an attorney, one will be appointed for him prior to any questioning.

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

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

a. The identity of the person making the report.

b. Information provided by any law-enforcement official.

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

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

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