Title of Regulation: 22VAC30-100. Adult Protective Services (amending 22VAC30-100-10, 22VAC30-100-20, 22VAC30-100-40 through 22VAC30-100-80; adding 22VAC30-100-45; repealing 22VAC30-100-30).

Statutory Authority: §§ 51.5-131 and 51.5-148 of the Code of Virginia; 42 USC § 1397(3).

Public Hearing Information: No public hearings are scheduled.

Public Comment Deadline: March 20, 2020.

Agency Contact: Paige L. McCleary, Adult Services Program Consultant, Department for Aging and Rehabilitative Services, 8004 Franklin Farms Drive, Richmond, VA 23229, telephone (804) 662-7605, or email paige.mccleary@dars.virginia.gov.

Basis: Section 51.5-148 of the Code of Virginia gives the Department for Aging and Rehabilitative Services (DARS) the responsibility for the planning, administration, and implementation of adult protective services (APS) in the Commonwealth. In addition, § 51.5-148 establishes the provision of these services by local departments of social services (LDSSs) and subject to the regulations promulgated by the Commissioner of the Department for Aging and Rehabilitative Services. Finally, § 51.5-131 of the Code of Virginia authorizes the commissioner to promulgate regulations necessary to carry out the provisions of the laws of the Commonwealth administered by the department.

Purpose: This regulatory action amends and clarifies language describing LDSS actions during the provision of APS to vulnerable adults in the Commonwealth. The standards ensure that an adult's health and safety remain a primary focus when services are provided to victims of adult abuse, neglect, or exploitation.

The right to review process establishes requirements ensuring that alleged perpetrators are afforded the opportunity to dispute the investigative findings of the LDSS while also balancing the safety and welfare of adult victims.

This regulatory action ensures the regulation content is clear, which is essential to ensuring that the adult's health and safety needs are most appropriately met.

Substance: Proposed changes include clarifying definitions and other regulation text as well as amending content that is obsolete or inconsistent. The intention is also to review regulatory language to ensure requirements adequately address the safety of the adult who is receiving services, while also balancing the adult's right to self-determination.

The regulatory language explains the requirements regarding workers' case documentation, including entering the case record into the state database of record. DARS guidance has included this information for several years, but it is necessary to include it in regulation. This action also eliminates regulatory language that may be redundant or confusing to workers.

The section that addresses civil penalties provides a more detailed process for each step in imposing a civil penalty. The Office of the Attorney General (OAG) determined that the current language needs to be more precise.

A new section establishes a right to review process for alleged perpetrators of adult abuse, neglect, or exploitation. Guidance provided by the OAG stated that this process needed to be established.

Other revisions to the regulation content may also be proposed based on public comment.

Issues: The advantages to the public and the agency or Commonwealth include that:

1. The amendments to the regulations ensure that the needs of older adults and individuals with disabilities are met during APS investigations and service provision. With the exception of the addition of the right to review process, the amendments to the regulation clarify but do not increase LDSS staff responsibilities.

2. The majority of the regulatory content comports with current manual guidance and current LDSS practice. The increase in responsibilities regarding right to review are balanced by the need to ensure that an individual who the LDSS identifies as the alleged perpetrator of adult abuse, neglect, or exploitation is afforded the opportunity to address this issue with the LDSS. The right to review process does not undermine or conflict with any due process protections afforded the alleged perpetrator by other licensing, regulatory, or legal authorities.

3. Amendments to the section addressing civil penalties clarify the process and more thoroughly explain that the responsibilities of individuals involved in the imposition of a civil penalty when a mandated reporter fails to report. Most mandated reporters are regulated by other state agencies.

While the proposed regulation has the beneficial impact of providing a consistent framework during the provision of APS in Virginia, it does have the disadvantage of a fiscal impact (as it relates to the right to review process) on the Commonwealth and LDSS. There are no disadvantages to the public.

Small Business Impact Review Report of Findings: This proposed 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. The Department for Aging and Rehabilitative Services (DARS) proposes to incorporate the current policy on an alleged adult abuse, neglect, or exploitation perpetrator's right to review the actions taken by the local department of social services (LDSS) as well as to make clarifying changes to content that may be unclear, inconsistent, or obsolete.

Background. This regulation establishes standards for LDSS for the provision of Adult Protective Services (APS) investigations and post-investigation services.

Estimated Benefits and Costs. Currently, an alleged adult abuse, neglect, or exploitation perpetrator's right to review actions taken against him/her by LDSS are addressed in DARS policy manuals. However, the Attorney General has advised DARS to incorporate the current policy into regulation. The right to review is a process by which the alleged perpetrator can contest an adverse disposition. Although, the right to review has existed in DARS policy manuals, DARS expects that inclusion of the process in the regulation would significantly improve compliance because the standards would be in a regulation, which has the force of law, rather than policy documents, which do not. Consequently, promulgation of the right to review in regulation is anticipated to result in additional reviews and hence increased administrative costs for LDSS.

DARS estimates 427 right to reviews may be held annually pursuant to this regulation. It is estimated that a local APS worker would spend seven hours of staff time per review at $36/hour to prepare for and conduct a right to review. It is also estimated that a local director would spend three additional hours per review at $63/hour to conduct a right to review. If 427 reviews occur annually, statewide staff expenses would be $188,368. Postage costs are estimated at $5 per review for a total of $2,135 bringing the total costs to $190,503. Localities would fund $29,528 (15.5%) of this amount and the rest, $160,975 (84.5%), would be funded by the Department of Social Services.

On the other hand, this action confers a benefit by strengthening an individual's right to contest an adverse disposition and avoid the consequences that may follow such a finding, especially if the finding would be communicated to a licensing, regulatory, or legal authority. However, DARS cannot estimate the number of cases where an original disposition may be amended after the right to review process is invoked. Additionally, local departments of social services as well as the public would have ease of access to and clarity about the right to review, likely producing a more consistent application of this process throughout the state and conferring the other procedural benefits that result from promulgation of a regulation under the Administrative Process Act.

According to DARS, the remaining changes largely reflect and clarify practices already followed by LDSS, and they are therefore not expected to create any significant economic impact other than improving the clarity of the existing rules.

Businesses and Other Entities Affected. The proposed amendments to the regulation estimated to primarily affect 427 individuals who may invoke their right to review their dispositions.

Localities² Affected.³ The proposed amendments should not affect any locality more than others. The proposed amendments are estimated to introduce $29,528 in administrative costs for local departments to conduct 427 right to reviews annually.

Projected Impact on Employment. The proposed amendments would require 4,270 hours of staff time statewide annually to implement the right to review process.

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

Adverse Effect on Small Businesses.⁴ The proposed amendments do not appear to adversely affect small businesses.

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²"Locality" can refer to either local governments or the locations in the Commonwealth where the activities relevant to the regulatory change are most likely to occur.

³§ 2.2-4007.04 defines "particularly affected" as bearing disproportionate material impact.

⁴Pursuant 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."

Agency's Response to Economic Impact Analysis: The Virginia Department for Aging and Rehabilitative Services concurs with the economic impact analysis performed by the Department of Planning and Budget.

Summary:

The proposed amendments update standards for local departments of social services (LDSSs) for the provision of adult protective services (APS) investigations and post-investigation services and provisions for the imposition of civil penalties on mandated reporters who fail to report suspected adult abuse, neglect, or exploitation, including (i) updating definitions used during the course of reporting adult abuse, neglect, and exploitation; APS investigations; and the provision of services to adults who may be victims; (ii) clarifying the specific actions an APS worker must take; and (iii) establishing a process to afford certain alleged perpetrators of adult abuse, neglect, or exploitation the opportunity to review the actions taken by an LDSS.

22VAC30-100-10. Definitions.

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

"Abuse" means the willful infliction of physical pain, injury, or mental anguish or unreasonable confinement of an adult as defined in § 63.2-1603 of the Code of Virginia.

"Adult" means any person in the Commonwealth who is abused, neglected, or exploited, or is at risk of being abused, neglected, or exploited; and is 18 years of age or older and incapacitated, or is 60 years of age and older, or any person 18 years of age or older who is incapacitated and who resides in the Commonwealth; provided, however, "adult" may include qualifying nonresidents who are temporarily in the Commonwealth and who are in need of temporary or emergency protective services.

"Adult protective services" or "APS" means services provided by the local department that are necessary to protect an adult as defined in § 63.2-1603 of the Code of Virginia from abuse, neglect, or exploitation.

"APS case management information system" means the computer system that collects and maintains information on APS reports, investigations, and service provision. The system is the official state automated system for APS.

"Collateral" means a person whose personal or professional knowledge may help confirm or rebut the allegations of adult abuse, neglect, or exploitation or whose involvement may help ensure the safety of the adult.

"Commissioner" means the commissioner of the department.

"Conservator" means a person appointed by the court who is responsible for managing the estate and financial affairs of an incapacitated person, and where the context plainly indicates, includes a "limited conservator" or a "temporary conservator."

"Department" or "DARS" means the Virginia Department for Aging and Rehabilitative Services.

"Director" means the director or his delegated designated representative of the local department of social services of the any city or county in which the adult resides or is found the Commonwealth.

"Disposition" means the determination by the local department of whether or not adult abuse, neglect, or exploitation has occurred.

"Documentation" means information and materials, written or otherwise, concerning allegations, facts, and evidence.

"Exploitation" means the illegal, unauthorized, improper, or fraudulent use of an adult as defined in § 63.2-1603 of the Code of Virginia or his the adult's funds, property, benefits, resources, or other assets for another's profit, benefit, or advantage, including a caregiver or person serving in a fiduciary capacity, or that deprives the adult of his rightful use of or access to such funds, property, benefits, resources, or other assets. "Adult exploitation" includes (i) an intentional breach of a fiduciary obligation to an adult to his detriment or an intentional failure to use the financial resources of an adult in a manner that results in neglect of such adult; (ii) the acquisition, possession, or control of an adult's financial resources or property through the use of undue influence, coercion, or duress; and (iii) forcing or coercing an adult to pay for goods or services or perform services against his will for another's profit, benefit, or advantage if the adult did not agree, or was tricked, misled, or defrauded into agreeing, to pay for such goods or services or perform such services.

"Guardian" means a person who has been legally invested with the authority and charged with the duty of taking care of the person and managing his property and protecting the rights of the person who has been declared by the circuit court to be incapacitated and incapable of administering his own affairs appointed by the court who is responsible for the personal affairs of an incapacitated person, including responsibility for making decisions regarding the person's support, care, health, safety, habilitation, education, therapeutic treatment, and, if not inconsistent with an order of involuntary admission, residence. Where the context plainly indicates, the term includes a "limited guardian" or a "temporary guardian." The powers and duties of the guardian are defined by the court and are limited to matters within the areas where in which the person in need of a guardian has been determined to be incapacitated.

"Guardian ad litem" means an attorney appointed by the court to represent the interest of the adult for whom a guardian or conservator is requested. On the hearing of the petition for appointment of a guardian or conservator, the guardian ad litem advocates for the adult who is the subject of the hearing, and his duties are usually concluded when the case is decided.

"Incapacitated person" means any adult who is impaired by reason of mental illness, intellectual disability, physical illness or disability, advanced age, or other causes to the extent that the adult lacks sufficient understanding or capacity to make, communicate, or carry out reasonable responsible decisions concerning his well-being. This definition is As used in this chapter for the purpose of establishing an adult's eligibility for adult protective services and APS, such adult may or may not have been found adjudicated incapacitated through by a court procedures.

"Involuntary protective services" means those services authorized by the court for an adult who has been determined to need protective services and who has been adjudicated incapacitated and lacking the capacity to consent to receive the needed protective services.

"Lacks capacity to consent" means a preliminary judgment of a local department of social services social worker that an adult is unable to consent to receive needed services for reasons that relate to an emotional or psychiatric problems condition, intellectual disability, developmental delay disability, or other reasons which that impair the adult's ability to recognize a substantial risk of death or immediate and serious harm to himself. The lack of capacity to consent may be either permanent or temporary. The worker must local department shall make a preliminary judgment that the adult lacks capacity to consent before petitioning the court for authorization to provide protective services on an emergency basis pursuant to § 63.2-1609 of the Code of Virginia.

"Legally incapacitated" means that the person has been adjudicated incapacitated by a circuit court because of a mental or physical condition which that renders him, either wholly or partially, incapable of taking care of himself or his estate.

"Legally incompetent" means a person who has been adjudicated incompetent by a circuit court because of a mental condition which renders him incapable of taking care of his person or managing his estate.

"Legitimate interest" means a lawful, demonstrated privilege right to access the requested information as defined in § 63.2-104 pursuant to § 51.5-122 of the Code of Virginia.

"Local department" means any local department of social services in the Commonwealth of Virginia.

"Mandated reporters" means those persons identified in § 63.2-1606 of the Code of Virginia who are required to report pursuant to § 63.2-1606 of the Code of Virginia to APS when such persons have reason to suspect that an adult is abused, neglected, or exploited or is at risk of adult abuse, neglect, or exploitation.

"Mental anguish" means a state of emotional pain or distress resulting from activity (verbal or behavioral) verbal or behavioral actions of a an alleged perpetrator. The intent of the activity action is to threaten or intimidate, cause sorrow or fear, humiliate, change behavior, or ridicule the adult. There must be observable or documented evidence that it is the alleged perpetrator's activity action that has caused the adult's feelings of emotional pain or distress.

"Neglect" means that an adult as defined in § 63.2-1603 of the Code of Virginia is living under such circumstances that he is not able to provide for himself or is not being provided such services as are necessary to maintain his physical and mental health and that the failure to receive such necessary services impairs or threatens to impair his well-being. However, no adult shall be considered neglected solely on the basis that such adult is receiving religious nonmedical treatment or religious nonmedical nursing care in lieu of medical care, provided that such treatment or care is performed in good faith and in accordance with the religious practices of the adult and there is written or oral expression of consent by that adult. Neglect includes the failure of a caregiver or another responsible person to provide for basic needs to maintain the adult's physical and mental health and well-being, and it includes the adult's neglect of self. Neglect includes:

1. The lack of clothing considered necessary to protect a person's an adult's health;

2. The lack of food necessary to prevent physical injury or to maintain life, including failure to receive appropriate food for adults with conditions requiring special diets;

3. Shelter that is not structurally safe; has rodents or other infestations which that may result in serious health problems; or does not have a safe and accessible water supply, safe heat source, or sewage disposal. Adequate shelter for an adult will depend depends on the impairments of an the adult; however, the adult must be protected from the elements that would seriously endanger his health (e.g., rain, cold, or heat) and could result in serious illness or debilitating conditions;

4. Inadequate supervision by a paid or unpaid caregiver (paid or unpaid) who has been designated to provide provides the supervision necessary to protect the safety and well-being of an adult in his care;

5. The failure of persons who are responsible for caregiving to seek needed medical care or to follow medically prescribed treatment for an adult, or the adult has failed to obtain such care for himself. The needed medical care is believed to be of such a nature as to result in physical or mental injury or illness if it is not provided;

6. Medical neglect includes the withholding of medication or aids needed by the adult such as including dentures, eye glasses, hearing aids, walker, etc or walkers. It also includes the unauthorized administration of prescription drugs, over-medicating or under-medicating, and the administration of drugs for other than bona fide medical reasons, as determined by a licensed health care professional; and or

7. Self-neglect by an adult who is not meeting his own basic needs due to mental or physical impairments. Basic needs refer to such things as food, clothing, shelter, health, or medical care.

"Notification" means informing designated and appropriate individuals or agencies of the local department's action and the individual's rights.

"Preponderance of evidence" means the evidence as a whole shows that the facts are more probable and credible than not. It is evidence that is of greater weight or more convincing than the evidence offered in opposition.

"Report" means an allegation made in writing or orally by any person that an adult is in need of protective services suspected of being abused, neglected, or exploited or at risk of being abused, neglected, or exploited. The term "report" shall refer to both reports and complaints of abuse, neglect, and exploitation of adults. The report may shall be made orally or in writing to the local department or by calling the Adult Protective Services APS Hotline.

"Responsible person" means an individual who is authorized by state law to make decisions concerning the adult and to receive information about the adult.

"Service plan" means a written plan of action to address the service needs of an adult in order to protect the adult, to prevent future abuse, neglect, or exploitation, and to preserve the autonomy of the adult whenever possible.

"Unreasonable confinement" means the use of physical or chemical restraints (physical or chemical), isolation, or any other means of confinement without medical orders, when there is no emergency and for reasons other than the adult's safety or well-being or the safety of others.

"Valid report" means the local department of social services has evaluated the information and allegations of the report and determined that the local department shall conduct an investigation because all of the following elements of 22VAC30-100-20 C for a valid report are present:.

1. The alleged victim adult is 60 years of age or older or is 18 years of age or older and is incapacitated;

2. There is a specific adult with enough identifying information to locate the adult;

3. Circumstances allege abuse, neglect or exploitation or risk of abuse, neglect or exploitation; and

4. The local department receiving the report is a local department of jurisdiction as described in 22VAC30-100-20.

"Voluntary protective services" means those services provided to an adult who, after investigation by a local department, is determined to be in need of protective services and consents to receiving the services so as to prevent further abuse, neglect, and exploitation of an adult at risk of abuse, neglect and exploitation.

22VAC30-100-20. Adult protective services intake and investigation.

A. This section establishes the process for the adult protective services APS intake and investigation and provides priority to situations that are most critical.

B. The validity of the report shall be determined. Investigations shall be initiated by the local department not later than 24 hours from the time a valid report was received in the local department. All reports shall be entered into the APS case management information system within 48 hours of its receipt by the local department.

C. The local department shall determine if the report is valid by evaluating the information and allegations in the report. A report is valid if all of the following elements are present:

1. The alleged adult victim is 60 years of age or older or is 18 years of age or older and is incapacitated;

2. There is a specific adult with enough identifying information to locate the adult;

3. Circumstances allege abuse, neglect, or exploitation or risk of abuse, neglect, or exploitation; and

4. The local department receiving the report is the local department of jurisdiction as described in this section.

D. Within 24 hours after receiving a valid report, the local department shall initiate an investigation.

1. To initiate the investigation, the social worker must local department shall gather enough information concerning the report to determine (i) if the report is valid and (ii) if an immediate response is needed to ensure the safety of the alleged victim. Pertinent information may be obtained from the report, case record reviews, contact with the alleged victim, the reporter, friends and, neighbors and, service providers, or other sources of information.

2. When determining the need for an immediate response, the social worker local department shall consider the following factors:

a. The imminent danger to the adult or to others;

b. The severity of the alleged abuse, neglect, or exploitation;

c. The circumstances surrounding the alleged abuse, neglect, or exploitation; and

d. The physical and mental condition of the adult.

3. A face-to-face contact with the alleged victim shall be made as soon as possible but not later than five calendar days after the date of the initiation of the investigation unless there are valid reasons that the contact could not be made. Those reasons shall be documented in the Adult Protective Services Assessment Narrative as described in 22VAC30-100-40 APS case management information system. The timing of the interview with the alleged victim should occur in a reasonable amount of time pursuant to consistent with the local department's consideration of the circumstances in subdivision 2 of this subsection.

C. The report shall be reduced to writing within 72 hours of receiving the report on a form prescribed by the department.

D. E. The purpose of the investigation is to determine whether the adult alleged to be abused, neglected, or exploited or at risk of abuse, neglect, or exploitation is in need of protective services and, if so, to identify those services needed to provide the protection.

E. F. The local department shall conduct a thorough investigation of the report.

F. G. The investigation shall include a visit and private interview with the adult alleged to be abused, neglected, or exploited.

G. H. The investigation shall include consultation with others having who may have knowledge of the facts of or information about the particular case report.

I. An APS assessment shall be required for all APS investigations and shall be entered into the APS case management information system. The APS assessment shall address the following:

1. Allegations in the report or circumstances discovered during the investigation that meet the definitions of adult abuse, neglect, or exploitation.

2. The extent to which the adult is physically, emotionally, and mentally capable of making and carrying out decisions concerning his health and well-being.

3. How the adult's environment, functional ability, physical and mental health, support system, and income and resources may be contributing factors in the abuse, neglect, or exploitation.

4. The risk of serious harm to the adult.

5. The need for an immediate response by the local department to a valid report.

6. The circumstances and information concerning an interview with the alleged victim, the alleged perpetrator (if known), and any collateral contacts having knowledge of the case.

H. J. Primary responsibility for the investigation when more than one local department may have jurisdiction under § 63.2-1605 of the Code of Virginia shall be assumed by the local department:

1. Where the subject of the investigation resides when the place of residence is known and when the alleged abuse, neglect, or exploitation occurred in the city or county of residence;

2. Where the abuse, neglect, or exploitation is believed to have occurred when the report alleges that the incident occurred outside the city or county of residence;

3. Where the abuse, neglect, or exploitation was discovered if the incident did not occur in the city or county of residence or if the city or county of residence is unknown and the place where the abuse, neglect, or exploitation occurred is unknown; or

4. Where the abuse, neglect, or exploitation was discovered if the subject of the report is a nonresident who is temporarily in the Commonwealth.

K. An adult's residence is determined by the physical location of the residence. An adult's residence is not determined by the locality to which the adult may pay or previously paid taxes or by whether the adult currently or previously received services or public assistance from another local department.

L. A local department that may have previously provided a service to or conducted an APS investigation on an adult shall assist with the investigation at the request of the local department with primary responsibility for investigation.

I. M. When an investigation extends across city or county lines into the jurisdiction of another local department, the local departments department in those cities or counties the other jurisdiction shall assist with the investigation at the request of the local department with primary responsibility for the investigation.

J. N. When the local department receives information on suspicious deaths of adults, the local department staff shall immediately notify the appropriate medical examiner and law enforcement.

22VAC30-100-30. Application for the provision of services. (Repealed.)

A. Local departments are authorized to receive and investigate reports of suspected adult abuse, neglect and exploitation pursuant to Article 2 (§ 63.2-1603 et seq.) of Chapter 16 of Title 63.2 of the Code of Virginia.

B. Upon completion of the investigation and the determination that the adult is in need of protective services, the adult protective services worker must obtain an application signed by the adult in need of services or his representative prior to service provision.

C. The application process is designed to assure the prompt provision of needed adult protective services including services to adults who are not able to complete and sign a service application.

D. Persons who may complete and sign an application for adult protective services on behalf of an adult who needs the service include:

1. The adult who will receive the services or the adult's legally appointed guardian or conservator;

2. Someone authorized by the adult; or

3. The local department.

22VAC30-100-40. Assessment narrative and Adult protective services disposition.

A. An assessment narrative shall be required for all adult protective services investigations and shall be titled "Adult Protective Services Assessment Narrative." The narrative must address, but is not limited to, the following:

1. Allegations in the report or circumstances discovered during the investigation that meet the definitions of abuse, neglect or exploitation.

2. The extent to which the adult is physically, emotionally and mentally capable of making and carrying out decisions concerning his health and well-being.

3. The risk of serious harm to the adult.

4. The need for an immediate response by the adult protective services worker upon receipt of a valid report.

5. The ability to conduct a private interview with the alleged victim, the alleged perpetrator (if known) and any collateral contacts having knowledge of the case.

B. A. After investigating the report, the adult protective services worker must local department shall review and evaluate the facts collected and make a disposition as to whether the adult is in need of protective services and, if so, what services are needed.

C. B. The disposition that the adult needs protective services shall be based on the preponderance of evidence that abuse, neglect, or exploitation has occurred or that the adult is at risk of abuse, neglect, or exploitation. The local department may be unable to determine the identity of the alleged perpetrator but the inability to determine the identity of the alleged perpetrator shall not prohibit the local department from issuing a disposition reflecting the need for protective services.

D. C. Possible dispositions.

1. Needs protective services and accepts. This disposition shall be used when:

a. A review of the facts shows a preponderance of evidence that adult abuse, neglect, or exploitation has occurred or is occurring; and

(1) The adult consents to receive services pursuant to § 63.2-1610 of the Code of Virginia; or

(2) Involuntary protective services are ordered by a court pursuant to § 63.2-1609 or Article 1 (§ 64.2-2000 et seq.) of Chapter 20 of Title 64.2 of the Code of Virginia; or

b. A review of the facts shows a preponderance of evidence that the adult is at risk of abuse, neglect, or exploitation and needs protective services in order to reduce that risk; and

c. (1) The adult consents to receive services pursuant to § 63.2-1610 of the Code of Virginia; or

d. (2) Involuntary protective services are ordered by the a court pursuant to § 63.2-1609 or Article 1 (§ 64.2-2000 et seq.) of Chapter 20 of Title 64.2 of the Code of Virginia.

2. Needs protective services and refuses. This disposition shall be used when:

a. A review of the facts shows a preponderance of evidence that adult abuse, neglect, or exploitation has occurred or is occurring or the adult is at risk of abuse, neglect, and exploitation; and

b. The adult refuses or withdraws consent to accept protective services pursuant to § 63.2-1610 of the Code of Virginia.

3. Need for protective services no longer exists. This disposition shall be used when the subject of the report no longer needs protective services. A review of the facts shows a preponderance of evidence that adult abuse, neglect, or exploitation has occurred. However, at the time the investigation is initiated or during the course of the investigation, the adult who is the subject of the report ceases to be at risk of further abuse, neglect, or exploitation due to the circumstances or actions that have occurred or have been initiated by the adult or an entity or person other than the local department.

4. Unfounded. This disposition shall be used when review of the facts does not show a preponderance of evidence that abuse, neglect, or exploitation occurred or that the adult is at risk of abuse, neglect, or exploitation.

5. Invalid. This disposition shall be used when, after initiating the investigation, it is determined that the report does not meet the criteria for a valid report.

E. D. The investigation shall be completed and a disposition assigned by the local department within 45 calendar days of the date the report was received. If the investigation is not completed within 45 calendar days, the record local department shall document reasons for the delay. The disposition shall be entered into the APS case management information system no later than five working days of the conclusion of the investigation.

F. A notice E. Notification of the completion of the investigation must shall be made in writing and shall be mailed to the reporter within 10 working days of the completion of the investigation.

F. Written notification.

1. The local department shall provide written notification to the alleged perpetrator within 30 calendar days of the conclusion of the investigation when:

a. The disposition (i) is needs protective services and accepts, (ii) needs protective services and refuses, or (iii) need for protective services no longer exists; and

b. The local department notified a licensing, regulatory, or legal authority of the disposition pursuant to § 63.3-1605 D of the Code of Virginia.

2. The notification shall include a summary of the evidence and information used by the local department to support the findings of the investigation; inform the alleged perpetrator about his right to review; and if applicable, identify all licensing, regulatory, or legal authorities and the date these authorities were notified.

3. The local department may delay notification to the alleged perpetrator by an additional 30 calendar days at the request of a law-enforcement agency.

4. It is optional for the local department to provide such notification to an adult whom the local department determines to be self-neglecting and is therefore considered to be the alleged perpetrator.

G. The Adult Protective Services Program local department shall respect the rights of adults with capacity to consider options offered by the program local department and refuse services, even if those decisions do not appear to reasonably be in the best interests of the adult.

22VAC30-100-45. Right to review.

A. Right to review is the process by which the alleged perpetrator may request a hearing to amend the record when the investigation has resulted in a disposition that the local department has communicated to a licensing, regulatory, or legal authority.

B. A written request for an informal hearing with the local department must be received by the local department within 30 calendar days of the date of the local department's written notification that meets the requirements of 22VAC30-100-40 F to be deemed timely.

C. The local department shall conduct an informal hearing within 30 calendar days of receiving the written request for an informal hearing.

D. The director shall preside over the informal hearing. Except for the director, no person whose regular duties include substantial involvement with the local department's adult abuse, neglect, or exploitation investigations shall preside over the hearing.

E. The alleged perpetrator may be represented by counsel. The alleged perpetrator shall be entitled to present the testimony of witnesses, documents, factual data, arguments, or other submissions of proof.

F. The director shall have the authority to sustain, amend, or reverse the findings of the investigation or the disposition.

G. The director shall notify the alleged perpetrator, in writing, of the results of the informal hearing within 30 calendar days of the date of the hearing. The decision of the director shall be final. The results of the informal hearing shall be mailed, certified with return receipt, to the alleged perpetrator. A copy of the final decision shall be mailed to the appropriate licensing, regulatory, or legal authority.

H. If the director reverses the identification of the alleged perpetrator, the local department shall continue to offer services to the adult if the disposition remains needs protective services and accepts.

I. All written findings and actions of the local department or its director, including the decision of the director at the conclusion of the review, are final and shall not be (i) appealable to the Commissioner for Aging and Rehabilitative Services or (ii) considered a final agency action for purposes of judicial review pursuant to the provisions of the Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia).

22VAC30-100-50. Disclosure of adult protective services information.

A. This chapter describes the protection of confidential information including a description of when such information must shall be disclosed, when such disclosure of the information is at the discretion of the local department, what information may be disclosed, and the procedure for disclosing the information.

B. Department staff having legitimate interest shall have regular access to adult protective services APS records maintained by the local department.

C. The following agencies have licensing, regulatory, and legal authority for administrative action or criminal investigations, and they have a legitimate interest in confidential information when such information is relevant and reasonably necessary for the fulfillment of their licensing, regulatory, and legal responsibilities:

1. Department of Behavioral Health and Developmental Services;

2. disAbility Law Center of Virginia;

3. Office of the Attorney General, including the Medicaid Fraud Control Program;

4. Department for Aging and Rehabilitative Services;

5. Department of Health, including the Office of Licensure and Certification and the Office of the Chief Medical Examiner;

6. Department of Medical Assistance Services;

7. Department of Health Professions;

8. Department for the Blind and Vision Impaired;

9. Department of Social Services, including the Division of Licensing Programs;

10. The Office of the State Long-Term Care Ombudsman and local ombudsman;

11. Law-enforcement agencies;

12. Medical examiners;

13. Adult fatality review teams;

14. Prosecutors Commonwealth's attorneys; and

15. Any other entity deemed appropriate by the commissioner or local department director that demonstrates a legitimate interest.

D. The local department shall disclose all relevant information to representatives of the agencies identified in subsection C of this section except the identity of the person who reported the abuse, neglect, or exploitation unless the reporter authorizes the disclosure of his identity or the disclosure is ordered by the court.

E. The local department shall refer any appropriate matter and all relevant documentation to the appropriate licensing, regulatory, or legal authority for administrative action or criminal investigation.

F. Local departments may release information to the following persons when the local department has determined the person making the request has legitimate interest in accordance with § 63.2-104 § 51.5-122 of the Code of Virginia and the release of information is in the best interest of the adult:

1. Representatives of public and private agencies including community services boards, area agencies on aging, and local health departments requesting disclosure when the agency has legitimate interest;

2. A physician or other licensed health care professional who is treating an adult whom he reasonably suspects is abused, neglected, or exploited;

3. The adult's legally appointed guardian or conservator;

4. A guardian ad litem who has been appointed for an adult who is the subject of an adult protective services APS report;

5. A family member who is responsible for the welfare of an adult who is the subject of an adult protective services APS report;

6. An attorney representing a local department in an adult protective services case APS matter;

7. The Social Security Administration; or

8. Any other entity that demonstrates to the commissioner or local department director that legitimate interest is evident.

G. Local departments are required to disclose certain requested information under the following circumstances:

1. When disclosure is ordered by a court;

2. When a person has made an adult protective services APS report and an investigation has been completed; or

3. When a request for access to information is made pursuant to the Government Data Collection and Dissemination Practices Act (§ 2.2-3800 et seq. of the Code of Virginia).

H. Any or all of the following specific information may be disclosed at the discretion of the local department to agencies or persons specified in subsection F of this section:

1. Name, address, age, race, and gender of the adult who is the subject of the request for information;

2. Name, address, age, race, and gender of the person who is alleged to have perpetrated the abuse, neglect, or exploitation;

3. Description of the incident or incidents of abuse, neglect, or exploitation;

4. Description of the adult's medical problems conditions to the extent known;

5. Disposition of the adult protective services APS report; and

6. The protective service needs of the adult.

I. The identity of the person who reported the suspected abuse, neglect, or exploitation shall be held confidential unless the reporter authorizes the disclosure of his identity or disclosure is ordered by the court.

J. Agencies or persons who receive confidential information pursuant to subsection G of this section shall provide the following assurances to the local department:

1. The purpose for which information is requested is related to the protective services goal in the service plan for the adult;

2. The information will be used only for the purpose for which it is made available; and

3. The information will be held confidential by the department or individual receiving the information except to the extent that disclosure is required by law.

K. Methods of obtaining assurances. Any one of the following methods may be used to obtain assurances required in subsection J of this section:

1. Agreements between local departments and other community service agencies that provide blanket assurances required in subsection J of this section for all adult protective services APS cases; or

2. State-level agreements that provide blanket assurances required in subsection C of this section for all adult protective services APS cases.

L. Notification that information has been disclosed. When information has been disclosed pursuant to this chapter section, notice of the disclosure shall be given to the adult who is the subject of the information or to his legally appointed guardian. If the adult has given permission to release the information, further notification shall not be required.

22VAC30-100-60. Opening a case for service provision.

A A. The local department shall offer a range of services must be made available to any abused, neglected and exploited adult or to adults at risk of abuse, neglect or exploitation to protect the adult and to prevent any future abuse, neglect or exploitation to the adult when the disposition is needs protective services and accepts as defined in 22VAC30-100-40.

1. Opening a case to adult protective services. Once a disposition of the report and an assessment of the adult's needs and strengths have been made, the department shall assess the adult's service needs.

B. Application for services.

1. The local department shall obtain an application when the disposition is needs protective services and accepts.

2. Representatives who may complete and sign an application on behalf of an adult who needs protective services include:

a. The adult's legally appointed guardian or conservator;

b. The adult's responsible person; or

c. The local department.

C. A case shall be opened for adult protective services when:

a. 1. The service needs are identified;

b. 2. The disposition is that the adult needs protective services and accepts; and

c. 3. The adult or the adult's representative as identified in subdivision B 2 of this section agrees to accept protective services or protective services are ordered by the court.

2. Service planning. D. A service plan which that is based on the investigative findings and the assessment of the adult's need for protective services shall be developed. The service plan is the basis for the activities that the worker local department, the adult, and other persons individuals will undertake to provide the services necessary to protect the adult. The service plan shall be documented in the APS case management information system.

3. E. Implementation of the service plan. Implementation of the service plan is the delivery of the services necessary to provide adequate protection to the adult. The services may be delivered directly, through purchase of service, through informal support, or through referral. The continuous monitoring of the adult's progress and the system's response is a part of the implementation.

4. F. Local departments are required to provide services beyond the investigation to the extent that federal or state matching funds are made available.

22VAC30-100-70. Civil penalty for nonreporting.

A. The department commissioner may impose civil penalties when it is determined that a mandated reporter failed to report suspected adult abuse, neglect, or exploitation pursuant to § 63.2-1606 of the Code of Virginia.

B. Civil penalties for all mandated reporters except law-enforcement officers shall be imposed as described in 22VAC30-100-80 determined by a court of competent jurisdiction, at its discretion.

22VAC30-100-80. Imposition of civil penalty.

A. Local department review and recommendation.

1. Based on a decision by the local department When a director or his designee determines that a mandated reporter failed to report as required by § 63.2-1606 of the Code of Virginia, the local director shall prepare a written statement of fact on a form provided by the department concerning the mandated reporter's failure to report and submit the statement of fact to the commissioner. The director also shall prepare a letter notifying the mandated reporter of the intent to request imposition of a civil penalty. The letter shall state the mandated reporter's right to submit a written statement to the commissioner concerning the mandated reporter's failure to report. The date of the director's notification shall be the date of the letter to the mandated reporter. Any supporting documentation that the director considered in requesting the imposition of a civil penalty shall be provided to the mandated reporter. The letter, statement of facts, and any supporting documentation that the director considered in requesting the imposition of a civil penalty shall be sent to the mandated reporter by registered or certified mail, return receipt requested.

2. The local director or his designee shall notify the mandated reporter in writing within 15 calendar days from the date of the determination of the intent to recommend that a civil penalty be imposed. The notification will include a copy of the local director's statement of fact concerning the mandated reporter's failure to report. The notification shall state the mandated reporter's right to submit a written statement to the commissioner concerning the mandated reporter's failure to report. The date of the notification is the postage date At such time as the letter required under subdivision 1 of this subsection is sent, the director shall send a letter to the commissioner requesting the imposition of a civil penalty on the mandated reporter for failure to report. The statement of fact and the letter to the mandated reporter shall accompany the letter to the commissioner.  Any supporting documentation that the director considered in requesting the imposition of a civil penalty shall be provided to the commissioner.

3. The mandated reporter's statement concerning his failure to report must be received by the commissioner within 45 days from the date of the local director's notification of intent to recommend the imposition of a civil penalty. A mandated reporter's statement received after the 45 days shall not be considered by the commissioner.

B. Review by the commissioner or his designee

1. The commissioner or his designee shall review the local director's written statement of fact concerning the mandated reporter's failure to report and the mandated reporter's written statement in determining whether to impose a civil penalty.

2. In the case of law-enforcement officers who are alleged to have not reported as required, the commissioner or his designee shall forward the recommendation to a court of competent jurisdiction.

3. The commissioner or his designee shall impose a civil penalty upon a mandated reporter who is determined to have not reported as required pursuant to § 63.2-1606 of the Code of Virginia. Penalties shall be imposed as follows:

a. For first offenses of nonreporting pursuant to § 63.2-1606 H of the Code of Virginia, the penalty shall be not more than $500.

b. For second and subsequent offenses pursuant to § 63.2-1606 H of the Code of Virginia, the penalty shall be not less than $100 and not more than $1,000.

4. The commissioner or his designee shall notify the mandated reporter whether a civil penalty will be imposed and, if so, the amount of the penalty. This written notice shall describe the reasons for the imposition of the civil penalty. The date of notification shall be deemed to be the date the mandated reporter received written notice of the alleged violation. This notice shall include specifics of the violation charged and shall be sent by overnight express mail or by registered or certified mail, return receipt requested.

5. If a civil penalty is imposed, a copy of the notice to the mandated reporter shall be sent to the appropriate licensing, regulatory, or administrative agency and to the local director who recommended the imposition of the penalty.

B. Statement from mandated reporter. Within 45 calendar days from the date of the director's notification to the mandated reporter of intent to request the imposition of a civil penalty, the mandated reporter may submit a written statement concerning his failure to report to the commissioner. Statements received by the commissioner after 45 calendar days will be deemed untimely and will not be considered.

C. Review by the commissioner's designee.

1. The commissioner's designee shall review the director's statement of facts, the mandated reporter's written statement, and any supporting documentation provided by the director in determining whether to impose a civil penalty.

2. In the case of law-enforcement officers who are alleged not to have reported as required, the commissioner or the commissioner's designee shall forward a recommendation to the court of competent jurisdiction.

3. Within 30 calendar days after the deadline for the commissioner's receipt of the mandated reporter's written statement, the commissioner's designee shall issue a final decision to the mandated reporter in writing, addressing whether a civil penalty will be imposed. The final decision shall include specifics of the violation charged, the reasons for the imposition of the civil penalty, and the amount of the penalty. The date of the final decision is the date the final decision is sent to the mandated reporter. The commissioner's designee shall also send a copy of the final decision to the director who recommended the imposition of the civil penalty.

D. Reconsideration of a final decision imposing a civil penalty shall be conducted in accordance with § 2.2-4023.1 of the Code of Virginia. The commissioner's review on reconsideration shall not include testimony, statements, or documentary submissions that were not included in the director's intent to request imposition of a civil penalty or presented to the commissioner or the commissioner's designee prior to issuance of the final decision.

6. E. Any mandated reporter has the right to appeal the decision to impose a civil penalty in accordance with § 2.2-4026 of the Code of Virginia and pursuant to Part 2 A of the Rules of the Supreme Court of Virginia.