Title of Regulation: 6VAC35-150. Regulation for Nonresidential Services (amending 6VAC35-150-335).

Statutory Authority: §§ 16.1-233, 16.1-309.2, and 66-10 of the Code of Virginia.

Public Hearing Information: No public hearing is currently scheduled.

Public Comment Deadline: September 15, 2021.

Effective Date: October 1, 2021.

Agency Contact: Kenneth Davis, Assistant Regulatory Coordinator, Department of Juvenile Justice, P.O. Box 1110, Richmond, VA 23218, telephone (804) 807-0486, FAX (804) 371-6497, or email kenneth.davis@djj.virginia.gov.

Basis: Section 16.1-233 of the Code of Virginia directs the board to promulgate regulations pertaining to the appointment and function of court service staffs and related supportive personnel to the end that uniform services, insofar as is practical, will be available to juvenile and domestic relations district courts throughout the Commonwealth. Additionally, the board is entrusted with general, discretionary authority to adopt regulations by § 66-10 of the Code of Virginia, which authorizes the board to promulgate such regulations as may be necessary to carry out the provisions of this title and other laws of the Commonwealth.

Purpose: Section 16.1-260 of the Code of Virginia sets out the statutory rules intake officers must follow when diverting eligible juvenile offenses. Currently, the statute allows an intake officer to delay the filing of a petition for a complaint alleging a child is in need of services, supervision, or delinquent, provided (i) the alleged offense is not a violent juvenile felony; and (ii) the juvenile has not had a previous felony offense diverted or has not been adjudicated delinquent for a previous felony offense. An intake officer who exercises the option to divert an eligible juvenile offense must develop a plan for the juvenile, which may include restitution, community service, treatment, and other alternatives that the juvenile must accomplish. Prior to July 1, 2020, § 16.1-260 established a 90-day deadline for completing the diversion plans for eligible truancy offenses, but did not impose any deadlines for other eligible diversions. Based on the statutory language, the department's regulatory provision addressing diversions, set out in 6VAC35-101-335, sets a 90-day cap on truancy diversion plans and a 120-day cap for all other offenses eligible for diversion.

During the 2020 legislative session, the department lobbied for legislation that would remove the 90-day statutory cap for completing the truancy diversion plan to enable the department to align its truancy diversion cap with the 120-day regulatory cap already in place for other diversions. The General Assembly voted unanimously in support of striking the statutory 90-day limitation, effective July 1, 2020.

Because the statute is now silent regarding the time limit for completing any eligible diversion, truancy or otherwise, and because 6VAC35-150-335, consistent with the stricken legislative language, sets the maximum time limit for truancy diversion plans at 90 days, the court service units remain subject to the 90-day cap on truancy diversion plans until the regulation is amended.

The department considers a regulatory change to remove the 90-day cap on truancy diversion plans necessary to assist youth eligible for diversions in successfully completing their plans. According to data maintained by the department, of the 2,872 truancy complaints that were assigned a diversion plan between Fiscal Year 2017 and Fiscal Year 2019, only 66.7% were completed successfully, compared to the 84.7% success rate for all other diverted complaints. The department believes the lower success rate for truancy diversions might be attributable to the shorter diversion period. Extending the time period for truancy diversions will give court service unit staff additional time to monitor the child and family's progress toward completing the plan and the youth additional time to meet the plan's requirements.

The General Assembly has demonstrated the Commonwealth's commitment to using diversion in appropriate circumstances in § 16.1-227 of the Code. That provision explains one of the purposes of the statutes governing juvenile and domestic relations district courts: that is to divert from the juvenile justice system (to the extent possible, consistent with the protection of public safety), those youth who can be cared for or treated through alternative programs. Having these diversion opportunities in place reduces the number of petitions that must be filed, and therefore, reduces the likelihood of a youth getting further and unnecessarily entrenched in the juvenile justice system. These diversion opportunities are futile if the Court Service Units staff responsible for administering and monitoring the resident's progress toward completing the plan and the youth responsible for carrying out its directives do not have sufficient time to meet these obligations. Amending the regulation to remove this 90-day cap will address this issue.

Rationale for Using Fast-Track Rulemaking Process: The department does not expect this rulemaking to be controversial. Section 16.1-260 of the Code of Virginia formed the basis for the 90-day cap, and the proposal to amend this statute met with unanimous support in both the House and Senate. Furthermore, allowing a 120-day period for truancy diversions is consistent with the maximum period permitted for diversions for more serious misdemeanor offenses.

Substance: The proposal amends 6VAC35-150-335 by striking the regulatory language that imposes a 90-day cap on diversions for truancy offenses. In so doing, the proposed amendment extends the maximum diversion period for truancy offenses to 120 days.

Issues: The department expects this regulatory proposal to benefit the public by increasing the number of successful truancy diversions. Extending the timeframe for truancy diversions an additional 30 days makes it more likely that the youth subject to this diversion plan will successfully complete the diversion program, thereby reducing truancy in the Commonwealth. Successful completion of a truancy diversion plan also eliminates the need for the intake officer to file a petition. By reducing the number of petitions filed, the proposal supports the department's continued transformation efforts to reduce deeper system involvement for low-risk youth. Decreasing the number of petitions filed with the court also will benefit the juvenile courts by decreasing their workload and dockets. The department also hopes that an increase in successful truancy diversions will generate a decrease in crimes that may result indirectly from truancy.

The proposed action is not expected to disadvantage the public or the Commonwealth.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. The Board of Juvenile Justice (Board) proposes to remove the 90-day deadline currently imposed on truancy diversion plans.

Background. Code of Virginia § 16.1-260¹ states that if a juvenile is alleged to be a truant pursuant to a complaint filed in accordance with § 22.1-258² and the school division's attendance officer has provided documentation to the intake officer, i.e. juvenile probation officer, that the relevant school division has complied with specified provisions, then the intake officer shall file a petition with the court.

The intake officer may defer filing the petition and proceed informally by developing a truancy diversion plan, provided that (i) the juvenile has not previously been proceeded against informally or adjudicated in need of supervision on more than two occasions for failure to comply with compulsory school attendance as provided in § 22.1-254³ and (ii) the immediately previous informal action or adjudication occurred at least three calendar years prior to the current complaint.

The truancy diversion plan may include requirements that the juvenile and the juvenile's parent or guardian participate in programs, cooperate in treatment, or be subject to such conditions and limitations as necessary to ensure the juvenile's compliance with compulsory school attendance. In practice, the intake officer may ensure that the youth has an alarm clock or a phone with an alarm, make sure that a school bus is stopping where the juvenile is currently residing, or arrange for virtual instruction when appropriate, etc.⁴ If at the end of the deferral period the juvenile has not successfully completed the truancy plan or the truancy program by regularly attending school, then the intake officer shall file the petition with the court, and the juvenile goes before a judge.

Prior to July 1, 2020, § 16.1-260 established a 90-day deadline for completing the diversion plans for eligible truancy offenses, but did not impose any deadlines for other eligible offense diversions. Based on the statutory language, 6VAC35-150 Regulation for Nonresidential Services (regulation) sets a 90-day cap on truancy diversion plans and a 120-day cap for all other offenses eligible for diversion.

During the 2020 legislative session, the Department of Juvenile Justice (DJJ) lobbied for legislation that would remove the 90-day statutory cap for completing the truancy diversion plan to enable the Board to align its truancy diversion cap with the 120-day regulatory cap already in place for other diversions. The General Assembly voted unanimously in support of striking the statutory 90-day limitation, effective July 1, 2020.⁵

The current regulation states that when an intake officer diverts an eligible juvenile offense, the maximum diversion period shall not exceed 120 days, with the exception that for juveniles alleged to be truant the maximum diversion period is 90 days. Now that the statutory cap of 90 days has been removed, the Board proposes to repeal the 90-day diversion maximum for truancy. Consequently, truancy would have a 120-day diversion maximum along with the other juvenile offenses.

Estimated Benefits and Costs. According to data maintained by DJJ, of the 2,872 truancy complaints that were assigned a diversion plan between Fiscal Year 2017 and Fiscal Year 2019, only 66.7% were completed successfully, compared to the 84.7% success rate for all other diverted complaints. DJJ believes the shorter diversion period contributes to the lower success rate for truancy diversions compared to other diversions. Extending the time period for truancy diversions would give intake officers additional time to monitor the child and family's progress toward completing the plan and the youth additional time to meet the plan's requirements.

Successful completion of diversion programs reduces the number of petitions that must be filed, and therefore, reduces the likelihood of a youth getting further entrenched in the juvenile justice system. This can be beneficial for the child and reduce court costs and other costs associated with the juvenile justice system. Successful completion of truancy diversion also means the youth is regularly attending school, which is also beneficial.

Businesses and Other Entities Affected. The proposal potentially affects intake officers, who work for court service units in the 32 judicial districts in the Commonwealth. The intake officers are DJJ employees in all judicial districts, except for Fairfax and Arlington where they are local employees. The proposal may also affect juvenile and domestic relations district courts by moderately reducing their receipt of petitions. To the extent that the proposal may moderately reduce truancy, it may also affect the 132 public school divisions in the Commonwealth. The proposal does not appear to have an adverse economic impact.⁶

Small Businesses⁷ Affected. The proposal does not appear to adversely affect small businesses.

Localities⁸ Affected.⁹ The proposal applies statewide and may particularly affect those localities with relatively high rates of truancy. The proposal does not require additional expenditures for localities.

Projected Impact on Employment. The proposal does not appear to affect total employment.

Effects on the Use and Value of Private Property. The proposal does not appear to affect the use and value of private property or real estate development costs.

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¹See https://law.lis.virginia.gov/vacode/title16.1/chapter11/section16.1-260/

²See https://law.lis.virginia.gov/vacode/22.1-258/

³See https://law.lis.virginia.gov/vacode/22.1-254/

⁴Source: Department of Juvenile Justice

⁵See https://lis.virginia.gov/cgi-bin/legp604.exe?201+sum+HB1324

⁶Adverse impact is indicated if there is any increase in net cost or reduction in net revenue for any entity, even if the benefits exceed the costs for all entities combined.

⁷Pursuant 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."

⁸"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.

⁹§ 2.2-4007.04 defines "particularly affected" as bearing disproportionate material impact.

Agency's Response to Economic Impact Analysis: The agency has reviewed the Department of Planning and Budget (DPB) economic impact analysis. The agency is in agreement with the DPB analysis.

Summary:

Pursuant to Chapter 753 of the 2020 Acts of Assembly, the amendment removes the 90-day deadline currently imposed on youth alleged to be truant pursuant to a complaint filed in accordance with § 22.1-258 of the Code of Virginia and subject to a truancy diversion plan.

6VAC35-150-335. Diversion.

A. When an intake officer proceeds with diversion in accordance with subsection B of § 16.1-260 of the Code of Virginia, such supervision shall not exceed 120 days. For a juvenile alleged to be a truant pursuant to a complaint filed in accordance with § 22.1-258 of the Code of Virginia, such supervision shall be limited to 90 days.

B. When a new complaint is filed against a juvenile who is currently under supervision in accordance with subsection A of this section, and the juvenile qualifies for diversion in accordance with subsection B of § 16.1-260 of the Code of Virginia, then the intake officer may proceed with diversion for an additional 120 days from the date of the subsequent complaint.

C. In no case shall a petition be filed by the CSU based on acts or offenses in the original complaint after 120 days from the date of the initial referral on the original complaint.