22VAC40-720 Child Protective Services Release of Information to Family Advocacy Representatives of the United States Armed Forces

REGULATIONS

Vol. 32 Iss. 8 - December 14, 2015

TITLE 22. SOCIAL SERVICES

STATE BOARD OF SOCIAL SERVICES

Chapter 720

Proposed Regulation

Titles of Regulations: 22VAC40-700. Child Protective Services Central Registry Information (repealing 22VAC40-700-10, 22VAC40-700-20, 22VAC40-700-30).

22VAC40-705. Child Protective Services (amending 22VAC40-705-10, 22VAC40-705-30 through 22VAC40-705-80, 22VAC40-705-110 through 22VAC40-705-140, 22VAC40-705-160, 22VAC40-705-180).

22VAC40-720. Child Protective Services Release of Information to Family Advocacy Representatives of the United States Armed Forces (repealing 22VAC40-720-10, 22VAC40-720-20).

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

Public Hearing Information: No public hearings are scheduled.

Public Comment Deadline: February 12, 2016.

Agency Contact: Mary Walter, Child Protective Services Consultant, Department of Social Services, 801 East Main Street, Richmond, VA 23219, telephone [phone], FAX [phone], or email [e-mail].

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 carry out the purposes of social services. Chapter 15 (§ 63.2-1500 et seq.) of Title 63.2 of the Code of Virginia provides the authority for the Child Protective Services (CPS) program.

Purpose: This regulatory action is essential to protect the health, safety, and welfare of children at risk for child abuse or neglect. The goal of this regulatory action is to conduct a review of 22VAC40-705, amend existing CPS requirements and add new requirements to make the CPS regulation consistent with the Code of Virginia, clarify and strengthen the CPS program while balancing the rights of alleged abusers with protecting children and families, and reduce the number of regulations the public may have to review to find CPS information.

Substance: The provisions of the repealed regulations (22VAC40-700 and 22VAC40-720) will be incorporated into 22VAC40-705. The two repealed regulations include requirements for reporting to the Military Family Advocacy Program and retention time of names of abusers and victims involved in founded investigations within the CPS central registry. This action will reduce the total number of regulations for the CPS program from four to two. A separate regulation, 22VAC40-730, provides requirements specific to conducting investigations of child abuse and neglect in an out-of-family setting by a nonfamilial caretaker.

Statutory changes made in 2013 necessitate additions and amendments to the regulation. These include provisions for (i) suspending sexual abuse and child death investigations if reports generated outside the local agency are necessary to make a disposition and (ii) notification to local school boards for all founded investigations that involve any school employee.

Substantive proposed changes include adding:

• Definitions for "near fatality" and "response time";

• The requirement for reports to be acted upon and the victim child to be interviewed within the determined response time;

• The federal requirement to notify relatives within 30 days of removal;

• A requirement for a risk assessment to be completed for all investigations;

• Provision for suspending certain investigations;

• Retention requirements for serious sexual abuse records;

• A requirement to notify school boards for all employees in founded investigations and notify the individual of this action; and

• Training requirements for all CPS staff.

Substantive proposed changes include removing:

• A requirement to invalidate reports for substance exposed infant if mother sought counseling;

• Directive for not rendering founded dispositions for substance exposed infants; and

• Reference to exact timeframes for emergency removals.

Proposed amendments clarify the definition of mental abuse or neglect, responsibilities for mandated reporting of substance abuse exposure for newborns, release of information to the Military Family Advocacy, release of information when there is a legitimate interest, and release of information while there is a pending criminal investigation. General proposed changes (i) improve the consistency of terminology used within this regulation, such as the use of the term "electronic recording" versus "audio taping"; (ii) adjust numbering, order, and format to improve the organization and flow of requirements; and (iii) correct statutory references to ensure the most current and accurate citation.

Issues: One of the primary advantages to the public and individual private citizens will be a clearer understanding of the processes involved when making a report to CPS and the actions that are taken by CPS. The public will benefit from having CPS staff receiving current, best practice training annually. Local departments of social services (LDSS) will benefit from amendments to the regulation that provide clarity and enhance existing requirements. The public, the Commonwealth, and LDSS will benefit from having fewer regulations. There are no disadvantages to the Commonwealth. LDSS will need to support the training of local staff when the revised regulation is finalized.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. The State Board of Social Services (Board) proposes to repeal 22VAC40-700 and 22VAC40-720 and consolidate the rules contained in these regulations into 22VAC40-705 so that all rules relating to child protective services are in one regulation. The Board also proposes to make many clarifying changes, as well as several substantive changes, to current language contained in 22VAC40-705. The substantive changes proposed by the Board include:

1) Removing language that requires child protective services workers to have some indication of abuse or neglect other than prenatal drug or alcohol exposure to make a finding that a newborn has been abused or neglected and

2) Requiring child protective services (CPS) workers and supervisors to complete a minimum of 24 hours of continuing education annually.

Result of Analysis. Benefits outweigh costs for most proposed regulatory changes. For two regulatory changes, there is insufficient information to ascertain whether benefits will outweigh costs.

Estimated Economic Impact. The Board proposes to make many clarifying changes to this regulation. None of these clarifying changes impose new restrictions or requirements on any entity but instead are aimed at making regulatory text more understandable. Consequently, no entity is likely to incur any costs on account of these changes; to the extent that CPS rules are made less opaque, affected entities will likely benefit from them.

Currently, regulations require child protective services workers to have some indication of abuse or neglect other than prenatal drug or alcohol exposure to make a finding that a newborn has been abused or neglected. The Board proposes to remove this requirement from regulation while leaving it in DSS policy at the behest of the Attorney General's Office. In general, language that is part of the Virginia Administrative Code is more protective of the public than language that is in agency policy because it is normally legally binding and because regulatory language can normally only be changed through a process that provides public notice and opportunities for the public to affect the proposed changes, but agencies do not necessarily follow a similar process when policy is changed. Because of this, parents of drug exposed infants and members of the general public who might want an opportunity to become involved when there is a shift in the rules Local Department of Social Services (LDSS) work under will likely be worse off if this language is removed from the regulation. There is insufficient information to gauge whether benefits that might accrue on account of this change would outweigh the costs for these individuals.

Current regulations do not require CPS workers to complete any continuing education. The Board now proposes to require all CPS workers and supervisors to complete 24 hours of continuing education annually. Board staff reports that local LDSS do not normally have to pay for continuing education classes because there are many class options available at no additional cost to them. They can, for instance have CPS staff take online classes available through the Commonwealth's online Knowledge Center, or staff can participate in online and face-to-face classes and seminars offered through the State Department of Social Services as well as other state and federal agencies. Board staff reports that CPS workers and supervisors will be paid for time spent completing required continuing education. This means that LDSS will incur implicit costs for time that workers and supervisors spend meeting this proposed requirement instead of completing their normal job tasks. The value of that time can be calculated by multiplying the number of CPS workers and supervisors by their hourly wages then by the 24 hours of newly required continuing education. Exact numbers of CPS workers and supervisors are not available but would be a subset of the total number of equivalent Family Service Specialists that are in the employ of LDSS (2,245).¹ These workers have an average salary of roughly $48,000 per year (or roughly $23 per hour).² Using these numbers, implicit cost of LDSS time spent in annual training for each affected CPS worker and supervisor would be roughly $552. To the extent that continuing education helps CPS workers complete their job tasks more efficiently or improves outcomes for CPS programs, LDSSs will benefit from this requirement. There is insufficient information to ascertain whether any such benefit will outweigh the costs listed above.

Businesses and Entities Affected. These proposed regulatory changes will affect all 120 LDSSs and their CPS workers and supervisors, as well as families who are the subject of abuse or neglect investigations and other individuals who might be interested in the rules that govern child protective services.

Localities Particularly Affected. These proposed regulatory changes will affect all 120 LDSS.

Projected Impact on Employment. The proposed amendments are unlikely to significantly affect employment.

Effects on the Use and Value of Private Property. These proposed regulatory changes are unlikely to affect the use and value of private property.

Small Businesses: Costs and Other Effects. These proposed regulatory changes affect LDSSs and members of the public but are unlikely to directly affect any small business in the Commonwealth.

Small Businesses: Alternative Method that Minimizes Adverse Impact. These proposed regulatory changes affect LDSSs and members of the public but are unlikely to directly affect any small business in the Commonwealth.

Real Estate Development Costs. These proposed regulatory changes are unlikely to affect real estate development costs.

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¹Information provided by the State Department of Social Services.

²$48,000 divided by 2080 which is assumed to be the number of hours normally worked in a year.

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:

Proposed amendments include adding (i) definitions for "near fatality" and "response time," (ii) a requirement for reports to be acted upon and the victim child to be interviewed within a determined response time, (iii) a federal requirement to notify relatives within 30 days of removal, (iv) a requirement for a risk assessment to be completed for all investigations, (v) provisions for suspending certain investigations, (vi) retention requirements for serious sexual abuse records, (vii) a requirement to notify school boards for all employees in founded investigations and to notify the individual of this action, (viii) and training requirements for all Child Protective Services staff.

Proposed amendments include removing (i) a requirement to invalidate reports for substance exposed infant if the mother sought counseling, (ii) the directive for not rendering founded dispositions for substance exposed infants, and (iii) a reference to exact timeframes for emergency removals.

Proposed amendments generally (i) clarify the definition of "mental abuse or neglect," the responsibilities for mandated reporting of substance abuse exposure for newborns, the release of information to the Military Family Advocacy, the release of information when there is a legitimate interest, and the release of information while there is a pending criminal investigation; (ii) reorganize and renumber sections for clarity; and (iii) update references to the Code of Virginia.

22VAC40-705-10. Definitions.

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

"Abuser or neglector" means any person who is found to have committed the abuse and/or neglect of a child pursuant to Chapter 15 (§ 63.2-1500 et seq.) of Title 63.2 of the Code of Virginia.

"Administrative appeal rights" means the child protective services appeals procedures for a local level informal conference and a state level hearing pursuant to § 63.2-1526 of the Code of Virginia, under which an individual who is found to have committed abuse and/or neglect may request that the local department's records be amended.

"Alternative treatment options" means treatments used to prevent or treat illnesses or promote health and well-being outside the realm of modern conventional medicine.

"Appellant" means anyone who has been found to be an abuser and/or neglector and appeals the founded disposition to the director of the local department of social services, an administrative hearing officer, or to circuit court.

"Assessment" means the process by which child protective services workers determine a child's and family's needs.

"Caretaker" means any individual having the responsibility of providing care for a child and includes the following: (i) parent or other person legally responsible for the child's care; (ii) any other person who has assumed caretaking responsibility by virtue of an agreement with the legally responsible person; (iii) persons responsible by virtue of their positions of conferred authority; and (iv) adult persons residing in the home with the child.

"Case record" means a collection of information maintained by a local department, including written material, letters, documents, tapes, photographs, film or other materials regardless of physical form about a specific child protective services investigation, family or individual.

"Central Registry" means a subset of the child abuse and neglect information system and is the name index with identifying information of individuals named as an abuser and/or neglector in founded child abuse and/or neglect complaints or reports not currently under administrative appeal, maintained by the department.

"Certified substance abuse counselor" means a person certified to provide substance abuse counseling in a state-approved public or private substance abuse program or facility.

"Child abuse and neglect information system" means the computer system which that collects and maintains information regarding incidents of child abuse and neglect involving parents or other caretakers. The computer system is composed of three parts: the statistical information system with nonidentifying information, the Central Registry of founded complaints not on appeal, and a database that can be accessed only by the department and local departments that contains all nonpurged CPS reports. This system is the official state automated system.

"Child protective services" means the identification, receipt and immediate response to complaints and reports of alleged child abuse and/or neglect for children under 18 years of age. It also includes assessment, and arranging for and providing necessary protective and rehabilitative services for a child and his family when the child has been found to have been abused or neglected or is at risk of being abused or neglected.

"Child protective services worker" means one who is qualified by virtue of education, training and supervision and is employed by the local department to respond to child protective services complaints and reports of alleged child abuse and/or neglect.

"Chronically and irreversibly comatose" means a condition caused by injury, disease or illness in which a patient has suffered a loss of consciousness with no behavioral evidence of self-awareness or awareness of surroundings in a learned manner other than reflexive activity of muscles and nerves for low-level conditioned response and from which to a reasonable degree of medical probability there can be no recovery.

"Collateral" means a person whose personal or professional knowledge may help confirm or rebut the allegations of child abuse and/or neglect or whose involvement may help ensure the safety of the child.

"Complaint" means any information or allegation of child abuse and/or neglect made orally or in writing pursuant to § 63.2-100 of the Code of Virginia.

"Consultation" means the process by which the alleged abuser and/or neglector may request an informal meeting to discuss the investigative findings with the local department prior to the local department rendering a founded disposition of abuse and/or neglect against that person pursuant to § 63.2-1526 A of the Code of Virginia.

"Controlled substance" means a drug, substance or marijuana as defined in § 18.2-247 of the Code of Virginia including those terms as they are used or defined in the Drug Control Act, Chapter 34 (§ 54.1-3400 et seq.) of Title 54.1 of the Code of Virginia. The term does not include alcoholic beverages or tobacco as those terms are defined or used in Title 3.1 or Title 4.1 of the Code of Virginia.

"Department" means the Virginia Department of Social Services.

"Differential response system" means that local departments of social services may respond to valid reports or complaints of child abuse or neglect by conducting either a family assessment or an investigation.

"Disposition" means the determination of whether or not child abuse and/or neglect has occurred.

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

"Family Advocacy Program representative" means the professional employed by the United States Armed Forces who has responsibility for the program designed to address prevention, identification, evaluation, treatment, rehabilitation, follow-up and reporting of family violence, pursuant to 22VAC40-720-20 22VAC40-705-140.

"Family assessment" means the collection of information necessary to determine:

1. The immediate safety needs of the child;

2. The protective and rehabilitative services needs of the child and family that will deter abuse or neglect;

3. Risk of future harm to the child; and

4. Alternative plans for the child's safety if protective and rehabilitative services are indicated and the family is unable or unwilling to participate in services. These arrangements may be made in consultation with the caretaker(s) of the child.

"First source" means any direct evidence establishing or helping to establish the existence or nonexistence of a fact. Indirect evidence and anonymous complaints do no constitute first source evidence.

"Founded" means that a review of the facts shows by a preponderance of the evidence that child abuse and/or neglect has occurred. A determination that a case is founded shall be based primarily on first source evidence; in no instance shall a determination that a case is founded be based solely on indirect evidence or an anonymous complaint.

"He" means he or she.

"His" means his or her.

"Identifying information" means name, social security number, address, race, sex, and date of birth.

"Indirect evidence" means any statement made outside the presence of the child protective services worker and relayed to the child protective services worker as proof of the contents of the statement.

"Informed opinion" means that the child has been informed and understands the benefits and risks, to the extent known, of the treatment recommended by conventional medical providers for his condition and the alternative treatment being considered as well as the basis of efficacy for each, or lack thereof.

"Investigation" means the collection of information to determine:

1. The immediate safety needs of the child;

2. The protective and rehabilitative services needs of the child and family that will deter abuse or neglect;

3. Risk of future harm to the child;

4. Alternative plans for the child's safety if protective and rehabilitative services are indicated and the family is unable or unwilling to participate in services;

5. Whether or not abuse or neglect has occurred;

6. If abuse or neglect has occurred, who abused or neglected the child; and

7. A finding of either founded or unfounded based on the facts collected during the investigation.

"Investigative narrative" means the written account of the investigation contained in the child protective services case record.

"Legitimate interest" means a lawful, demonstrated privilege to access the information as defined in § 63.2-104 63.2-105 of the Code of Virginia.

"Licensed substance abuse treatment practitioner" means a person who (i) is trained in and engages in the practice of substance abuse treatment with individuals or groups of individuals suffering from the effects of substance abuse or dependence, and in the prevention of substance abuse or dependence and (ii) is licensed to provide advanced substance abuse treatment and independent, direct and unsupervised treatment to such individuals or groups of individuals, and to plan, evaluate, supervise, and direct substance abuse treatment provided by others.

"Life-threatening condition" means a condition that if left untreated more likely than not will result in death and for which the recommended medical treatments carry a probable chance of impairing the health of the individual or a risk of terminating the life of the individual.

"Local department" means the city or county local agency of social services or department of public welfare in the Commonwealth of Virginia responsible for conducting investigations or family assessments of child abuse and/or neglect complaints or reports pursuant to § 63.2-1503 of the Code of Virginia.

"Local department of jurisdiction" means the local department in the city or county in Virginia where the alleged victim child resides or in which the alleged abuse and/or neglect is believed to have occurred. If neither of these is known, then the local department of jurisdiction shall be the local department in the county or city where the abuse and/or neglect was discovered.

"Mandated reporters" means those persons who are required to report suspicions of child abuse and/or neglect pursuant to § 63.2-1509 of the Code of Virginia.

"Monitoring" means contacts with the child, family and collaterals which provide information about the child's safety and the family's compliance with the service plan.

"Multidisciplinary teams" means any organized group of individuals representing, but not limited to, medical, mental health, social work, education, legal and law enforcement, which will assist local departments in the protection and prevention of child abuse and neglect pursuant to § 63.2-1503 K of the Code of Virginia. Citizen representatives may also be included.

"Near fatality" means an act that, as certified by a physician, places the child in serious or critical condition. Serious or critical condition is a life-threatening condition or injury.

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

"Particular medical treatment" means a process or procedure that is recommended by conventional medical providers and accepted by the conventional medical community.

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

"Purge" means to delete or destroy any reference data and materials specific to subject identification contained in records maintained by the department and the local department pursuant to §§ 63.2-1513 and 63.2-1514 of the Code of Virginia.

"Reasonable diligence" means the exercise of justifiable and appropriate persistent effort.

"Report" means either a complaint as defined in this section or an official document on which information is given concerning abuse and neglect. A Pursuant to § 63.2-1509 of the Code of Virginia, a report is required to be made by persons designated herein and by local departments in those situations in which a response to a complaint from the general public reveals suspected child abuse and/or neglect pursuant to subdivision 5 of the definition of abused or neglected child in § 63.2-100 of the Code of Virginia.

"Response time" means the urgency in which a valid report of suspected child abuse or neglect is initiated by the local department based on the child's immediate safety or other factors.

"Safety plan" means an immediate course of action designed to protect a child from abuse or neglect.

"Service plan" means a plan of action to address the service needs of a child and/or his family in order to protect a child and his siblings, to prevent future abuse and neglect, and to preserve the family life of the parents and children whenever possible.

"State automated system" means the "child abuse and neglect information system" as previously defined.

"Substance abuse counseling or treatment services" are services provided to individuals for the prevention, diagnosis, treatment, or palliation of chemical dependency, which may include attendant medical and psychiatric complications of chemical dependency.

"Sufficiently mature" is determined on a case-by-case basis and means that a child has no impairment of his cognitive ability and is of a maturity level capable of having intelligent views on the subject of his health condition and medical care.

"Terminal condition" means a condition caused by injury, disease or illness from which to a reasonable degree of medical probability a patient cannot recover and (i) the patient's death is imminent or (ii) the patient is chronically and irreversibly comatose.

"Unfounded" means that a review of the facts does not show by a preponderance of the evidence that child abuse or neglect occurred.

"Valid report or complaint" means the local department of social services has evaluated the information and allegations of the report or complaint and determined that the local department shall conduct an investigation or family assessment because the following elements are present:

1. The alleged victim child or children are under the age of 18 at the time of the complaint or report;

2. The alleged abuser is the alleged victim child's parent or other caretaker;

3. The local department receiving the complaint or report is a local department of jurisdiction; and

4. The circumstances described allege suspected child abuse or neglect.

"Withholding of medically indicated treatment" means the failure to respond to the infant's life-threatening condition by providing treatment (including appropriate nutrition, hydration, and medication) which in the treating physician's or physicians' reasonable medical judgment will most likely be effective in ameliorating or correcting all such conditions.

22VAC40-705-30. Types of abuse and neglect.

A. Physical abuse occurs when a caretaker creates or inflicts, threatens to create or inflict, or allows to be created or inflicted upon a child a physical injury by other than accidental means or creates a substantial risk of death, disfigurement, or impairment of bodily functions, including, but not limited to, a child who is with his parent or other person responsible for his care either (i) during the manufacture or attempted manufacture of a Schedule I or II controlled substance or (ii) during the unlawful sale of such substance by that child's parents or other person responsible for his care, where such manufacture, or attempted manufacture or unlawful sale would constitute a felony violation of § 18.2-248 of the Code of Virginia.

B. Physical neglect occurs when there is the failure to provide food, clothing, shelter, necessary medical treatment, or supervision for a child to the extent that the child's health or safety is endangered. This also includes abandonment and situations where the parent's or caretaker's own incapacitating behavior or absence prevents or severely limits the performing of child caring tasks pursuant to § 63.2-100 of the Code of Virginia. This also includes a child under the age of 18 years whose parent or other person responsible for his care knowingly leaves the child alone in the same dwelling as a person, not related by blood or marriage, who has been convicted of an offense against a minor for which registration is required as a violent sexual offender pursuant to § 9.1-902 of the Code of Virginia. In situations where the neglect is the result of family poverty and there are no outside resources available to the family, the parent or caretaker shall not be determined to have neglected the child; however, the local department may provide appropriate services to the family.

1. Physical neglect may include multiple occurrences or a one-time critical or severe event that results in a threat to health or safety.

2. Physical neglect may include failure to thrive.

a. Failure to thrive occurs as a syndrome of infancy and early childhood which that is characterized by growth failure, signs of severe malnutrition, and variable degrees of developmental retardation.

b. Failure to thrive can only be diagnosed by a physician and is caused by nonorganic factors.

3. Physical neglect may include medical neglect.

C. a. Medical neglect occurs when there is the failure by the caretaker to obtain or follow through with a complete regimen of medical, mental, or dental care for a condition which that if untreated could result in illness or developmental delays pursuant to § 63.2-100 of the Code of Virginia. However, a decision by parents or other persons legally responsible for the child to refuse a particular medical treatment for a child with a life-threatening condition shall not be deemed a refusal to provide necessary care if (i) such decision is made jointly by the parents or other person legally responsible for the child and the child; (ii) the child has reached 14 years of age and sufficiently mature to have an informed opinion on the subject of his medical treatment; (iii) the parents or other person legally responsible for the child and the child have considered alternative treatment options; and (iv) the parents or other person legally responsible for the child and the child believe in good faith that such decision is in the child's best interest.

b. Medical neglect also includes withholding of medically indicated treatment.

1. (1) A child who, in good faith, is under treatment solely by spiritual means through prayer in accordance with the tenets and practices of a recognized church or religious denomination pursuant to § 63.2-100 of the Code of Virginia shall not for that reason alone be considered a neglected child in accordance with § 63.2-100 of the Code of Virginia.

2. (2) For the purposes of this regulation chapter, "withholding of medically indicated treatment" does not include the failure to provide treatment (other than appropriate nutrition, hydration, or medication) to an infant when in the treating physician's or physicians' reasonable medical judgment:

a. (a) The infant is chronically and irreversibly comatose;

b. (b) The infant has a terminal condition and the provision of such treatment would: (1) Merely (i) merely prolong dying; (2) Not (ii) not be effective in ameliorating or correcting all of the infant's life-threatening conditions; (3) Otherwise (iii) otherwise be futile in terms of the survival of the infant; or (4) Be (iv) be virtually futile in terms of the survival of the infant and the treatment itself under such circumstances would be inhumane.

D. C. Mental abuse or neglect occurs when a caretaker creates or inflicts, threatens to create or inflict, or allows to be created or inflicted upon a child a mental injury by other than accidental means or creates a substantial risk of impairment of mental functions.

1. Mental abuse or neglect includes acts of omission by the caretaker resulting in harm to a child's psychological or emotional health or development.

2. Professional documentation supporting a nexus between the actions or inactions of the caretaker and the mental dysfunction or threat of dysfunction demonstrated by the child is required in order to make a founded disposition.

3. Mental abuse or neglect may include failure to thrive.

1. a. Failure to thrive occurs as a syndrome of infancy and early childhood which that is characterized by growth failure, signs of severe malnutrition, and variable degrees of developmental retardation.

2. b. Failure to thrive can only be diagnosed by a physician and is caused by nonorganic factors.

E. D. Sexual abuse occurs when there is the child's parents or other persons responsible for the care commits or allows to be committed any act of sexual exploitation or any sexual act upon a child in violation of the law which is committed or allowed to be committed by the child's parents or other persons responsible for the care of the child pursuant to § 63.2-100 of the Code of Virginia.

22VAC40-705-40. Complaints and reports of suspected child abuse and/or neglect.

A. Persons who are mandated to report are those individuals defined in § 63.2-1509 of the Code of Virginia.

1. Mandated reporters shall report immediately any suspected abuse or neglect that they learn of in their professional capacity. No person shall be required to make a report pursuant to § 63.2-1509 of the Code of Virginia if unless the person has actual knowledge that the same matter has already been reported to the local department or the department's toll-free child abuse and neglect hotline.

2. Pursuant to § 63.2-1509 of the Code of Virginia, if information is received by a teacher, staff member, resident, intern, or nurse in the course of his professional services mandated reporters in a hospital, school, or other similar institution, such person may in place of said report, immediately notify make reports of suspected abuse or neglect immediately to the person in charge of the institution or department, or his designee, who shall then make such report forthwith If the initial report of suspected abuse or neglect is made to the person in charge of the institution or department, or his designee, such person shall (i) notify the teacher, staff member, resident, intern, or nurse who made the initial report when the report of suspected child abuse or neglect is made to the local department or to the department's toll-free child abuse and neglect hotline; (ii) provide the name of the individual receiving the report; and (iii) forward any communication resulting from the report, including any information about any actions taken regarding the report, to the person who made the initial report. on the mandated reporters' behalf. This person shall notify the mandated reporter when and to whom he made the report, as well as forward any other communication resulting from the report, including any action taken, to the mandated reporter.

3. Mandated reporters shall disclose all information that is the basis for the suspicion of child abuse or neglect and shall make available, upon request, to the local department any records and reports that document the basis for the complaint and/or report.

4. A Pursuant to § 63.2-1509 D of the Code of Virginia, a mandated reporter's failure to report as soon as possible, but no longer than 24 hours after having reason to suspect a reportable offense of child abuse or neglect, shall result in a fine. In cases evidencing acts of rape, sodomy, or object sexual penetration as defined in Article 7 (§ 18.2-61 et seq.) of Chapter 4 of Title 18.2 of the Code of Virginia, a person who knowingly and intentionally fails to make the report required pursuant to § 63.2-1509 of the Code of Virginia shall be guilty of a Class 1 misdemeanor.

5. A person who knowingly and intentionally fails to make a report in cases of rape, sodomy, or object sexual penetration shall be guilty of a Class 1 misdemeanor.

5. 6. Pursuant to § 63.2-1509 B of the Code of Virginia, a "reason certain specified facts indicating that a newborn may have been exposed to a controlled substance prior to birth are sufficient to suspect that a child is abused or neglected". This shall include (i) a finding made by a health care provider within six weeks of the birth of a child that the results of toxicology studies of the child indicate the presence of a controlled substance that was not prescribed for the mother by a physician; (ii) a finding made by a health care provider within six weeks of the birth of a child that the child was born dependent on a controlled substance that was not prescribed by a physician for the mother and has demonstrated withdrawal symptoms; (iii) a diagnosis made by a health care provider at any time following a child's birth that the child has an illness, disease, or condition which, to a reasonable degree of medical certainty, is attributable to in utero exposure to a controlled substance that was not prescribed by a physician for the mother or the child; or (iv) a diagnosis made by a health care provider at any time following a child's birth that the child has a fetal alcohol spectrum disorder attributable to in utero exposure to alcohol. When "reason to suspect" is based upon this subsection, such fact shall be included in the report along with the facts relied upon by the person making the report. Any report made pursuant to § 63.2-1509 A of the Code of Virginia constitutes a valid report of abuse or neglect and requires a child protective services investigation or family assessment, unless the mother sought treatment or counseling as required in this section and pursuant to § 63.2-1505 B of the Code of Virginia.

a. Pursuant to § 63.2-1509 of the Code of Virginia, whenever a health care provider makes a finding pursuant to § 63.2-1509 A of the Code of Virginia, then the health care provider or his designee must make a report to child protective services immediately. Pursuant to § 63.2-1509 D of the Code of Virginia, a health care provider who fails to make a report pursuant to § 63.2-1509 A of the Code of Virginia is subject to a fine.

b. When a report or complaint alleging abuse or neglect is made pursuant to § 63.2-1509 A B of the Code of Virginia, then the local department must immediately assess the infant's circumstances and any threat to the infant's health and safety. Pursuant to 22VAC40-705-110 A, the local department must conduct an initial safety assessment.

c. When a report or complaint alleging abuse or neglect is made pursuant to § 63.2-1509 A B of the Code of Virginia, then the local department must immediately determine whether to petition a juvenile and domestic relations district court for any necessary services or court orders needed to ensure the safety and health of the infant.

d. Within five days of receipt of a report made pursuant to § 63.2-1509 A of the Code of Virginia, the local department shall invalidate the complaint if the following two conditions are met: (i) the mother of the infant sought substance abuse counseling or treatment during her pregnancy prior to the infant's birth and (ii) there is no evidence of child abuse and/or neglect by the mother after the infant's birth.

(1) The local department must notify the mother immediately upon receipt of a complaint made pursuant to § 63.2-1509 A of the Code of Virginia. This notification must include a statement informing the mother that, if the mother fails to present evidence within five days of receipt of the complaint that she sought substance abuse counseling/treatment during the pregnancy, the report will be accepted as valid and an investigation or family assessment initiated.

(2) If the mother sought counseling or treatment but did not receive such services, then the local department must determine whether the mother made a substantive effort to receive substance abuse treatment before the child's birth. If the mother made a substantive effort to receive treatment or counseling prior to the child's birth, but did not receive such services due to no fault of her own, then the local department should invalidate the complaint or report.

(3) d. If the mother sought or received substance abuse counseling or treatment, but there is evidence, other than exposure to a controlled substance, that the child may be abused or neglected, then the local department may initiate the shall conduct an investigation or family assessment.

e. Substance abuse counseling or treatment includes, but is not limited to, education about the impact of alcohol, controlled substances and other drugs on the fetus and on the maternal relationship; education about relapse prevention to recognize personal and environmental cues which that may trigger a return to the use of alcohol or other drugs.

f. The substance abuse counseling or treatment should attempt to serve the purposes of improving the pregnancy outcome, treating the substance abuse disorder, strengthening the maternal relationship with existing children and the infant, and achieving and maintaining a sober and drug-free lifestyle.

g. The substance abuse counseling or treatment services must be provided by a professional. Professional substance abuse treatment or counseling may be provided by a certified substance abuse counselor or a licensed substance abuse treatment practitioner.

h. Facts indicating that the infant may have been exposed to controlled substances prior to birth are not sufficient, in and of themselves, to render a founded disposition of abuse or neglect. The local department must establish, by a preponderance of the evidence, that the infant was abused or neglected according to the statutory and regulatory definitions of abuse and neglect.

i. h. The local department may provide assistance to the mother in locating and receiving substance abuse counseling or treatment.

B. Persons who may report child abuse and/or neglect include any individual who suspects that a child is being abused and/or neglected pursuant to § 63.2-1510 of the Code of Virginia.

C. Complaints and reports of child abuse and/or neglect may be made anonymously. An anonymous complaint, standing alone, shall not meet the preponderance of evidence standard necessary to support a founded determination.

D. Any person making a complaint and/or report of child abuse and/or neglect shall be immune from any civil or criminal liability in connection therewith, unless the court decides it is proven that such person acted in bad faith or with malicious intent pursuant to § 63.2-1512 of the Code of Virginia.

E. When the identity of the reporter is known to the department or local department, these agencies shall make every effort to protect not disclose the reporter's identity. Upon request, the local department shall advise the person who was the subject of an unfounded investigation if the complaint or report was made anonymously.

F. If a person suspects that he is the subject of a report or complaint of child abuse and/or neglect made in bad faith or with malicious intent, that person may petition the court for access to the record including the identity of the reporter or complainant pursuant to § 63.2-1514 of the Code of Virginia.

G. Any person age 14 years or older who makes or causes to be made a knowingly false complaint or report of child abuse and/or neglect and is convicted shall be guilty of a Class 1 misdemeanor for a first offense pursuant to § 63.2-1513 of the Code of Virginia.

1. A subsequent conviction results in a Class 6 felony.

2. Upon receipt of notification of such conviction, the department will retain a list of convicted reporters.

3. The subject of the records may have the records purged upon presentation of proof a certified copy of such conviction.

H. To make a complaint or report of child abuse and/or neglect, a person may telephone the department's toll-free child abuse and neglect hotline or contact a local department of jurisdiction pursuant to § 63.2-1510 of the Code of Virginia.

1. The local department of jurisdiction that first receives a complaint or report of child abuse and/or neglect shall assume responsibility to ensure that a family assessment or an investigation is conducted.

2. A local department may ask another local department that is a local department of jurisdiction to assist in conducting the family assessment or investigation. If assistance is requested, the local department shall comply.

3. A local department may ask another local department through a cooperative agreement to assist in conducting the family assessment or investigation.

4. If a local department employee is suspected of abusing and/or neglecting a child, the complaint or report of child abuse and/or neglect shall be made to the juvenile and domestic relations district court of the county or city where the alleged abuse and/or neglect was discovered. The judge shall assign the report to a local department that is not the employer of the subject of the report, or, if the judge believes that no local department in a reasonable geographic distance can be impartial in responding to the reported case, the judge shall assign the report to the court service unit of his court for evaluation pursuant to §§ 63.2-1509 and 63.2-1510 of the Code of Virginia. The judge may consult with the department in selecting a local department to respond.

5. In cases where an employee at a private or state-operated hospital, institution, or other facility or an employee of a school board is suspected of abusing or neglecting a child in such hospital, institution, or other facility or public school, the local department shall request the department and the relevant private or state-operated hospital, institution, or other facility or school board to assist in conducting a joint investigation in accordance with regulations adopted by the board, in consultation with the Departments of Education, Health, Medical Assistance Services, Behavioral Health and Developmental Services, Juvenile Justice, and Corrections.

22VAC40-705-50. Actions to be taken upon receipt of a complaint or report.

A. All complaints and reports of suspected child abuse and/or neglect shall be recorded in the child abuse and neglect information system and either screened out or determined to be valid within five days of upon receipt and if valid, acted on within the determined response time. A record of all reports and complaints made to a local department or to the department, regardless of whether the report or complaint was found to be a valid complaint of abuse and/or neglect, shall be retained for one year from the date of the complaint unless a subsequent report is made.

B. In all valid complaints or reports of child abuse and/or neglect the local department of social services shall determine whether to conduct an investigation or a family assessment. A valid complaint or report is one in which:

1. The alleged victim child or children are under the age of 18 years at the time of the complaint and/or report;

2. The alleged abuser is the alleged victim child's parent or other caretaker;

3. The local department receiving the complaint or report is a local department of jurisdiction; and

4. The circumstances described allege suspected child abuse and/or neglect as defined in § 63.2-100 of the Code of Virginia.

C. The local department shall not conduct a family assessment or investigate complaints or reports of child abuse and/or neglect that fail to meet all of the criteria in subsection B of this section.

D. The local department shall report certain cases of suspected child abuse or neglect to the local attorney for the Commonwealth and the local law-enforcement agency pursuant to § 63.2-1503 D of the Code of Virginia.

E. Pursuant to § 63.2-1503 J D of the Code of Virginia, the local departments department shall develop, where practical, a memoranda of understanding for responding to reports of child abuse and neglect with local law enforcement and the local office of the commonwealth's attorney.

F. The local department shall report to the following when the death of a child is involved:

1. When abuse and/or neglect is suspected in any case involving the death of a child, the local department shall report the case immediately to the regional medical examiner and the local law-enforcement agency pursuant to § 63.2-1503 E of the Code of Virginia.

2. When abuse and/or neglect is suspected in any case involving the death of a child, the local department shall report the case immediately to the attorney for the Commonwealth and the local law-enforcement agency pursuant to § 63.2-1503 D of the Code of Virginia.

3. The local department shall contact the department immediately upon receiving a complaint involving the death of a child and at the conclusion of the investigation.

4. The department shall immediately, upon receipt of information, report on all child fatalities to the state board in a manner consistent with department policy and procedures approved by the board. At a minimum, the report shall contain information regarding any prior statewide child protective services involvement of the family, alleged perpetrator, or victim.

G. Valid complaints or reports shall be screened for high priority based on the following:

1. The immediate danger to the child;

2. The severity of the type of abuse or neglect alleged;

3. The age of the child;

4. The circumstances surrounding the alleged abuse or neglect;

5. The physical and mental condition of the child; and

6. Reports made by mandated reporters.

H. The local department shall initiate an immediate response but not later than within the determined response time. The response shall be a family assessment or an investigation. Any valid report may be investigated, but in accordance with § 63.2-1506 C of the Code of Virginia, those cases shall be investigated that involve: (i) sexual abuse, (ii) a child fatality, (iii) abuse or neglect resulting in a serious injury as defined in § 18.2-371.1 of the Code of Virginia, (iv) a child having been taken into the custody of the local department of social services, or (v) a caretaker at a state-licensed child day care center, religiously exempt child day center, regulated family day home, private or public school, or hospital or any institution.

1. The purpose of an investigation is to collect the information necessary to determine or assess the following:

a. Immediate safety needs of the child;

b. Whether or not abuse or neglect has occurred;

c. Who abused or neglected the child;

d. To what extent the child is at risk of future harm, either immediate or longer term;

e. What types of services can meet the needs of this child or family; and

f. If services are indicated and the family appears to be unable or unwilling to participate in services, what alternate plans will provide for the child's safety.

2. The purpose of a family assessment is to engage the family in a process to collect the information necessary to determine or assess the following:

a. Immediate safety needs of the child;

b. The extent to which the child is at risk of future harm, either immediate or longer term;

c. The types of services that can meet the needs of this child or family; and

d. If services are indicated and the family appears to be unable or unwilling to participate in services, the plans that will be developed in consultation with the family to provide for the child's safety. These arrangements may be made in consultation with the caretaker(s) of the child.

3. The local department shall use reasonable diligence to locate any child for whom a report or complaint of suspected child abuse and/or neglect has been received and determined valid or and persons who are the subject of a valid report if the whereabouts of such persons are unknown to the local department pursuant to § 63.2-1503 F of the Code of Virginia.

4. The local department shall document its attempts to locate the child and family.

5. In the event the alleged victim child or children cannot be found, the time the child cannot be found shall not be computed as part of the 45-60-day time frame to complete the investigation, pursuant to subdivision B 5 of § 63.2-1505 of the Code of Virginia.

22VAC40-705-60. Authorities of local departments.

When responding to valid complaints or reports, local departments have the following authorities:

1. To talk to any child suspected of being abused and/or neglected, or child's siblings, without the consent of and outside the presence of the parent or other caretaker, as set forth by § 63.2-1518 of the Code of Virginia.

2. To take or arrange for photographs and x-rays of a child who is the subject of a complaint without the consent of and outside the presence of the parent or other caretaker, as set forth in § 63.2-1520 of the Code of Virginia.

3. To take a child into custody on an emergency removal for up to 72-96 hours under such circumstances as set forth in § 63.2-1517 of the Code of Virginia.

a. A child protective services (CPS) worker planning to take a child into 72-96-hour emergency custody shall first consult with a supervisor. However, this requirement shall not delay action on the CPS child protective services worker's part if a supervisor cannot be contacted and the situation requires immediate action.

b. When circumstances warrant that a child be taken into emergency custody during a family assessment, the report shall be reassigned immediately to an investigation.

c. Any person who takes a child into custody pursuant to § 63.2-1517 of the Code of Virginia shall be immune from any civil or criminal liability in connection therewith, unless it is proven that such person acted in bad faith or with malicious intent.

d. The local department shall have the authority to have a complete medical examination made of the child including a written medical report and, when appropriate, photographs and x-rays pursuant to § 63.2-1520 of the Code of Virginia.

e. When a child in 72-96-hour emergency custody is in need of immediate medical or surgical treatment, the local director of social services or his designee(s) designee may consent to such treatment when the parent does not provide consent and a court order is not immediately obtainable.

f. When a child is not in the local department's custody, the local department cannot consent to medical or surgical treatment of the child.

g. When a child is removed, every effort must be made to obtain an emergency removal order within four hours. Reasons for not doing so shall be stated in the petition for an emergency removal order.

h. Every effort shall be made to provide notice of the removal in person to the parent or guardian as soon as practicable.

i. Within 30 days of removing a child from the custody of the parents or legal guardians, the local department shall exercise due diligence to identify and notify in writing all maternal and paternal grandparents and other adult relatives of the child and explain the options they have to participate in the care and placement of the child, unless the local department determines such notification is not in the best interest of the child. These notifications shall be documented in the state automated system. When notification to any of these relatives is not made, the child protective services worker shall document the reasons in the state automated system.

22VAC40-705-70. Collection of information.

A. When conducting an investigation the local department shall seek first-source information about the allegation of child abuse and/or neglect. When applicable, the local department shall include in the case record: police reports; depositions; photographs; physical, medical and psychological reports; and any electronic recordings of interviews.

B. When completing a family assessment, the local department shall gather all relevant information in collaboration with the family, to the degree possible, in order to determine the child and family services needs related to current safety or future risk of harm to the child.

C. All information collected for a family assessment or an investigation must be entered in the state automated system and maintained according to § 63.2-1514 for unfounded investigations or family assessments or according to 22VAC40-700-30 22VAC40-705-130 for founded investigations. The automated record entered in the statewide automation state automated system is the official record. When documentation is not available in electronic form, it must be maintained in the hard copy portion of the record. Any hard copy information, including photographs and recordings, shall be noted as an addendum to the official record.

22VAC40-705-80. Family assessment and investigation contacts.

A. During the course of the family assessment, the child protective services (CPS) worker shall make and record document in writing in the state automated system the following contacts and observations. When any of these contacts or observations is not made, the child protective services worker shall document in writing why the specific contact or observation was not made.

1. The child protective services worker shall conduct a face-to-face interview with and observe the alleged victim child and siblings within the determined response time.

2. The child protective services worker shall conduct a face-to-face interview with and observe all minor siblings residing in the home.

2. 3. The child protective services worker shall conduct a face-to-face interview with the alleged victim child's parents or guardians and/or any caretaker named in the report.

3. 4. The child protective services worker shall observe the family environment, contact pertinent collaterals, and review pertinent records in consultation with the family.

B. During the course of the investigation, the child protective services (CPS) worker shall make and record document in writing in the state automated system the following contacts and observations. When any of these contacts or observations is not made, the CPS child protective services worker shall record document in writing why the specific contact or observation was not made.

1. The child protective services worker shall conduct a face-to-face interview with and observation of the alleged victim child and siblings within the determined response time. All interviews with alleged victim children must be electronically recorded except when the child protective services worker determines that:

a. The child's safety may be endangered by electronically recording his statement;

b. The age and/or developmental capacity of the child makes electronic recording impractical;

c. A child refuses to participate in the interview if electronic recording occurs; or

d. In the context of a team investigation with law-enforcement personnel, the team or team leader determines that audio taping electronic recording is not appropriate.

e. The victim provided new information as part of a family assessment and it would be detrimental to reinterview the victim and the child protective services worker provides a detailed narrative of the interview in the investigation record.

In the case of an interview conducted with a nonverbal child where none of the above exceptions apply, it is appropriate to electronically record the questions being asked by the child protective services worker and to describe, either verbally or in writing, the child's responses. A child protective services worker shall document in detail in the record and discuss with supervisory personnel the basis for a decision not to electronically record an interview with the alleged victim child.

A child protective services finding may be based on the written narrative of the child protective services worker in cases where an electronic recording is unavailable due to equipment failure or the above exceptions.

2. The child protective services worker shall conduct a face-to-face interview and observe all minor siblings residing in the home.

2. 3. The child protective services (CPS) worker shall conduct a face-to-face interview with the alleged abuser and/or neglector.

a. The CPS child protective services worker shall inform the alleged abuser and/or neglector of his right to tape electronically record any communication pursuant to § 63.2-1516 of the Code of Virginia.

b. If requested by the alleged abuser and/or neglector, the local department shall provide the necessary equipment in order to electronically record the interview and retain a copy of the electronic recording.

3. 4. The child protective services worker shall conduct a face-to-face interview with the alleged victim child's parents or guardians.

4. 5. The child protective services worker shall observe the environment where the alleged victim child lives. This requirement may be waived in complaints of child abuse and neglect involving caretakers in state licensed and religiously exempted child care centers, regulated and unregulated family day care homes, private and public schools, group residential facilities, hospitals or institutions.

5. 6. The child protective services worker shall observe the site where the alleged incident took place.

6. 7. The child protective services worker shall conduct interviews with collaterals who have pertinent information relevant to the investigation and the safety of the child.

7. 8. Pursuant to § 63.2-1505 of the Code of Virginia, local departments may obtain and consider statewide criminal history record information from the Central Criminal Records Exchange on any individual who is the subject of a child abuse and neglect investigation where there is evidence of child abuse or neglect and the local department is evaluating the safety of the home and whether removal is necessary to ensure the child's safety. The local department may also obtain a criminal record check on all adult household members residing in the home of the alleged abuser and/or neglector and where the child visits. Pursuant to § 19.2-389 of the Code of Virginia, local departments are authorized to receive criminal history information on the person who is the subject of the investigation as well as other adult members of the household for the purposes in § 63.2-1505 of the Code of Virginia. The results of the criminal record history search may be admitted into evidence if a child abuse or neglect petition is filed in connection with the child's removal. Local departments are prohibited from dissemination of this information excepted as authorized by the Code of Virginia.

22VAC40-705-110. Assessments in family assessments and investigations.

A. In both family assessments and investigations the child protective services worker shall conduct an initial safety assessment of the child's circumstances and threat of danger or harm, and where appropriate shall make a safety plan to provide for the protection of the child.

B. In all founded cases and in completed family assessments and investigations, the child protective services worker shall make conduct a risk assessment to determine whether or not the child is in jeopardy of future abuse and/or neglect and whether or not intervention is necessary to protect the child.

C. In investigations, the child protective services worker shall make a dispositional assessment after collecting and synthesizing assessing information about the alleged abuse or neglect.

D. In all investigations with a founded disposition, the child protective services worker shall assess the severity of the abuse or neglect and shall assign a level. The three levels of founded dispositions are:

1. Level 1. This level includes those injuries or conditions, real or threatened, that result in or were likely to have resulted in serious harm to a child.

2. Level 2. This level includes injuries or conditions, real or threatened, that result in or were likely to have resulted in moderate harm to a child.

3. Level 3. This level includes injuries or conditions, real or threatened, that result in or were likely to have resulted in minimal harm to a child.

22VAC40-705-120. Complete the family assessment or investigation Extensions; suspensions; track changes; local conferences.

A. The local department shall promptly notify the alleged abuser and/or neglector and the alleged victim's parents or guardians of any extension of the deadline for the completion of the family assessment or investigation pursuant to § 63.2-1506 B 3 or subdivision 5 of § 63.2-1505 B 5 or § 63.2-1506 B 3 of the Code of Virginia. The child protective services worker shall document the notifications and the reason for the need for additional time in the case record.

B. At the completion of the family assessment, the subject of the report shall be notified orally and in writing of the results of the assessment. Pursuant to § 63.2-1505 B 5 of the Code of Virginia, in an investigation involving the death of a child or alleged sexual abuse of a child while waiting for records that are necessary to make a finding and the records are not available to the local department due to circumstances beyond the local department's control, the time during which the records are unavailable shall not be computed as part of the determination deadlines set out in § 63.2-1505 B 5 of the Code of Virginia. When such unavailability of records occurs, the local department shall promptly notify the alleged abuser or neglector and the alleged victim's parents or guardians that the records are unavailable and the effect of the unavailability on the completion of the investigation. The child protective services worker shall document the notifications and the reason for the suspension in the case record. Upon receipt of the records necessary to make a finding, the local department shall complete the investigation.

C. The subject of the report shall be notified immediately if during the course of completing the family assessment the situation is reassessed and determined to meet the requirements, as specified in § 63.2-1506 B 7 of the Code of Virginia, to be investigated.

D. The subject of the report or complaint may consult with the local department to hear and refute evidence collected during the investigation. Whenever a criminal charge is also filed against the alleged abuser for the same conduct involving the same victim child as investigated by the local department, sharing the evidence prior to the court hearing is prohibited. No information gathered during a joint investigation with law enforcement shall be released by the local department unless authorized by the investigating law-enforcement agency or the local attorney for the Commonwealth pursuant to § 63.2-1516.1 B of the Code of Virginia.

E. Local conference.

1. If the alleged abuser and/or neglector is found to have committed abuse or neglect, that alleged abuser and/or neglector may, within 30 days of being notified of that determination, submit a written request for an amendment of the determination and the local department's related records pursuant to § 63.2-1526 A of the Code of Virginia. The local department shall conduct an informal conference in an effort to examine the local department's disposition and reasons for it and consider additional information about the investigation and disposition presented by the alleged abuser and/or neglector.

2. The local conference shall be conducted in accordance with 22VAC40-705-190.

22VAC40-705-130. Report family assessment or investigation conclusions.

A. Unfounded investigation.

A. 1. Pursuant to § 63.2-1514 of the Code of Virginia, the local department shall report all unfounded case dispositions to the child abuse and neglect information system when disposition is made.

1. 2. The department shall retain unfounded complaints or reports with an unfounded disposition in the child abuse and neglect information system to provide local departments with information regarding prior investigations.

2. 3. This record shall be kept separate from the Central Registry and accessible only to the department and to local departments.

3. 4. The record of the unfounded case investigation with an unfounded disposition shall be purged one year after the date of the complaint or report if there are no subsequent founded or unfounded complaints and/or reports regarding the individual against whom allegations of abuse and/or neglect were made or regarding the same child in that one year.

4. The record of the family assessment shall be purged three years after the date of the complaint or report if there are no subsequent complaints and/or reports regarding the individual against whom allegations of abuse and/or neglect were made or regarding the same child in those three years.

5. If the individual against whom allegations of abuse and/or neglect were made or if the same child is involved in subsequent complaints and/or reports, the information from all complaints and/or reports shall be maintained until the last purge date has been reached.

6. 5. The individual against whom an unfounded disposition for allegations of abuse and/or neglect were was made may request in writing that the local department retain the record for an additional period of up to two years.

7. 6. The individual against whom allegations of abuse and/or neglect were made may request in writing that both the local department and the department shall immediately purge the record after a court rules upon presentation of a certified copy of a court order that there has been a civil action that determined that the complaint or report was made in bad faith or with malicious intent pursuant to § 63.2-1514 of the Code of Virginia.

B. Founded investigation.

B. 1. The local department shall report all founded case dispositions to the child abuse and neglect information system for inclusion in the Central Registry pursuant to subdivision 5 of § 63.2-1505 § 63.2-1515 of the Code of Virginia and 22VAC40-700-30.

2. Identifying information about the abuser and/or neglector and the victim child or children reported include demographic information, type of abuse or neglect, and date of the complaint.

3. The identifying information shall be retained based on the determined level of severity of the abuse or neglect pursuant to the regulation dealing with retention in the Central Registry, 22VAC40-700-30 22VAC40-705-110:

a. Eighteen years past the date of the complaint for all complaints determined by the local department to be founded as Level 1.

b. Seven years past the date of the complaint for all complaints determined by the local department to be founded as Level 2.

c. Three years past the date of the complaint for all complaints determined by the local department to be founded as Level 3.

4. Pursuant to § 63.2-1514 A of the Code of Virginia, all records related to founded, Level 1 dispositions of sexual abuse shall be maintained by the local department for a period of 25 years from the date of the complaint. This applies to all investigations with founded dispositions on or after July 1, 2010. This retention timeframe will not be reflected in the Central Registry past the purge dates set out in this subsection.

C. Family assessments.

1. The record of the family assessment shall be purged three years after the date of the complaint or report if there are no subsequent complaints or reports regarding the individual against whom allegations of abuse or neglect were made or regarding the same child in those three years.

2. The individual against whom allegations of abuse or neglect were made may request in writing that both the local department and the department shall immediately purge the record upon presentation of a certified copy of a court order that there has been a civil action that determined that the complaint or report was made in bad faith or with malicious intent pursuant to § 63.2-1514 of the Code of Virginia.

D. In all family assessments or investigations, if the individual against whom the allegations of abuse or neglect is involved in any subsequent complaint or report, the information from all complaints or reports shall be maintained until the last purge date has been reached.

22VAC40-705-140. Notification of findings.

A. Upon completion of the investigation or family assessment the local child protective services worker shall make notifications as provided in this section.

B. Individual against whom allegations of abuse and/or neglect were made.

1. When the disposition is unfounded, the child protective services worker shall inform the individual against whom allegations of abuse and/or neglect were made of this finding. This notification shall be in writing with a copy to be maintained in the case record. The individual against whom allegations of abuse and/or neglect were made shall be informed that he may have access to the case record and that the case record shall be retained by the local department for one year unless requested in writing by such individual that the local department retain the record for up to an additional two years.

a. If the individual against whom allegations of abuse and/or neglect were made or the subject child is involved in subsequent complaints, the information from all complaints shall be retained until the last purge date has been reached.

b. The local worker shall notify the individual against whom allegations of abuse and/or neglect were made of the procedures set forth in § 63.2-1514 of the Code of Virginia regarding reports or complaints alleged to be made in bad faith or with malicious intent.

c. When In accordance with § 32.1-283.1 D of the Code of Virginia when an unfounded disposition is made in an investigation that involves a child death, the child protective services worker shall inform the individual against whom allegations of abuse and/or neglect were made that the case record will be retained for the longer of 12 months or until the State Child Fatality Review Team has completed its review of the case pursuant to § 32.1-283.1 D of the Code of Virginia.

2. When the abuser and/or neglector in a founded complaint disposition is a foster parent of the victim child, the local department shall place a copy of this notification letter in the child's foster care record and in the foster home provider record.

3. When the abuser or neglector in a founded disposition is a full-time, part-time, permanent, or temporary employee of a school division, the local department shall notify the relevant school board of the founded complaint pursuant to § 63.2-1505 B 7 of the Code of Virginia.

4. The local department shall notify the Superintendent of Public Instruction when an individual holding a license issued by the Board of Education is the subject of a founded complaint of child abuse or neglect and shall transmit identifying information regarding such individual if the local department knows the person holds a license issued by the Board of Education and after all rights to any appeal provided by § 63.2-1526 of the Code of Virginia have been exhausted.

3. 5. No disposition of founded or unfounded shall be made in a family assessment. At the completion of the family assessment the subject of the report shall be notified orally and in writing of the results of the assessment. The child protective services worker shall notify the individual against whom allegations of abuse or neglect were made of the procedures set forth in § 63.2-1514 of the Code of Virginia regarding reports or complaints alleged to be made in bad faith or with malicious intent.

C. Subject child's parents or guardian.

1. When the disposition is unfounded, the child protective services worker shall inform the parents or guardian of the subject child in writing, when they are not the individuals against whom allegations of child abuse and/or neglect were made, that the complaint investigation involving their child was determined to be resulted in an unfounded disposition and the length of time the child's name and information about the case will be maintained. The child protective services worker shall file a copy in the case record.

2. When the disposition is founded, the child protective services worker shall inform the parents or guardian of the child in writing, when they are not the abuser and/or neglector, that the complaint involving their child was determined to be founded and the length of time the child's name and information about the case will be retained in the Central Registry. The child protective services worker shall file a copy in the case record.

3. When the founded case disposition of abuse or neglect does not name the parents or guardians of the child as the abuser or neglector and when the abuse or neglect occurred in a licensed or unlicensed day care center, a regulated family day home, a private or public school, a child-caring institution or a residential facility for juveniles, the parent or guardian must be consulted and must give permission for the child's name to be entered into the central registry pursuant to § 63.2-1515 of the Code of Virginia.

D. Complainant.

1. When an unfounded disposition is made, the child protective services worker shall notify the complainant, when known, in writing that the complaint was investigated and determined to be unfounded. The worker shall file a copy in the case record.

2. When a founded disposition is made, the child protective services worker shall notify the complainant, when known, in writing that the complaint was investigated and necessary action was taken. The local worker shall file a copy in the case record.

3. When a family assessment is completed, the child protective services worker shall notify the complainant, when known, that the complaint was assessed and necessary action taken.

E. Family Advocacy Program.

When a founded disposition is made, the child protective services worker shall notify the Family Advocacy Program representative in writing as set forth in 22VAC40-720-20. When a family assessment is conducted and the family is determined to be in need of services, the child protective services worker may notify the Family Advocacy Program representative in writing as set forth in 22VAC40-720-20.

1. Pursuant to § 63.2-1503 N of the Code of Virginia, in all investigations with a founded disposition or family assessment that involve an active duty member of the United States Armed Forces or members of his household, information regarding the disposition, type of abuse or neglect, and the identity of the abuser or neglector shall be provided to the appropriate Family Advocacy Program representative. This notification shall be made in writing within 30 days after the administrative appeal rights of the abuser or neglector have been exhausted or forfeited.

2. The military member shall be advised that this information regarding the founded disposition or family assessment is being provided to the Family Advocacy Program representative and shall be given a copy of the written notification sent to the Family Advocacy Program representative.

3. Pursuant to § 63.2-105 of the Code of Virginia, when an active duty member of the United States Armed Forces or a member of his household is involved in an investigation, family assessment, or provision of services case, any information regarding child protective services reports, complaints, investigations, family assessments, and follow up may be shared with the appropriate Family Advocacy Program representative of the United States Armed Forces when the local department determines such release to be in the best interest of the child. In these situations, coordination between child protective services and the Family Advocacy Program is intended to facilitate identification, treatment, and service provision to the military family.

4. When needed by the Family Advocacy Program representative to facilitate treatment and service provision to the military family, any other additional information not prohibited from being released by state or federal law or regulation shall also be provided to the Family Advocacy Program representative when the local department determines such release to be in the best interest of the child.

22VAC40-705-160. Releasing information.

A. In the following instances of mandatory disclosure the local department shall release child protective services information. The local department may do so without any written release.

1. Report to attorney for the Commonwealth and law enforcement pursuant to § 63.2-1503 D of the Code of Virginia.

2. Report to the regional medical examiner's office pursuant to §§ 32.1-283.1 C and § 63.2-1503 E F of the Code of Virginia.

3. If a court mandates disclosure of information from a child abuse and neglect case record, the local department must comply with the request. The local department may challenge a court action for the disclosure of the case record or any contents thereof. Upon exhausting legal recourse, the local department shall comply with the court order.

4. When a family assessment or investigation is completed, the child protective services worker shall notify the complainant/reporter that either a complaint/report is unfounded or that necessary action is being taken.

5. 3. Any individual, including an individual against whom allegations of child abuse and/or neglect were made, may exercise his Privacy Protection Act Government Data Collection and Dissemination Practices Act (§ 2.2-3800 et seq. of the Code of Virginia) rights to access personal information related to himself which that is contained in the case record including, with the individual's notarized consent, a search of the Central Registry pursuant to § 2.2-3704 of the Code of Virginia.

6. 4. When the material requested includes personal information about other individuals, the local department shall be afforded a reasonable time in which to redact those parts of the record relating to other individuals.

7. 5. Pursuant to the Child Abuse Prevention and Treatment Act, as amended (42 USC § 5101 et seq.), and federal regulations (45 CFR Part 1340), the local department shall provide case-specific information about child abuse and neglect reports and investigations to citizen review panels when requested.

8. 6. Pursuant to the Child Abuse Prevention and Treatment Act, as amended (42 USC § 5101 et seq.), the department shall develop guidelines to allow for public disclosure in instances of child fatality or near fatality.

9. 7. An individual's right to access information under the Privacy Protection Act Government Data Collection and Dissemination Practices Act is stayed during criminal prosecution pursuant to § 2.2-3802 63.2-1526 C of the Code of Virginia.

10. 8. The local department shall disclose and release to the United States Armed Forces Family Advocacy Program child protective services information as required pursuant to 22VAC40-720-20 22VAC40-705-140.

11. 9. Child protective services shall, on request by the Division of Child Support Enforcement, supply information pursuant to § 63.2-103 of the Code of Virginia.

12. 10. The local department shall release child protective services information to a court appointed special advocate pursuant to § 9.1-156 A of the Code of Virginia.

13. 11. The local department shall release child protective services information to a court-appointed guardian ad litem pursuant to § 16.1-266 E G of the Code of Virginia.

B. The local department may use discretion in disclosing or releasing child protective services case record information, investigative and on-going services to parties having a legitimate interest when the local department deems disclosure to be in the best interest of the child. The local department may disclose such information without a court order and without a written release pursuant to § 63.2-105 of the Code of Virginia.

C. The local department shall not release the identity of persons reporting incidents of child abuse or neglect, unless court ordered, in accordance with § 63.2-1526 of the Code of Virginia, 42 USC § 5101 et seq., and federal regulations (45 CFR Part 1340).

D. C. Prior to disclosing information to any individuals or organizations, and to be consistent with § 63.2-104 63.2-105 of the Code of Virginia, pursuant to § 63.2-1500 of the Code of Virginia, the local department must be satisfied that consider the factors described in subdivisions 1, 2, and 3 of this subsection as some of the factors necessary to determine whether a person has a legitimate interest and the disclosure of information is in the best interest of the child:

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

2. Such purpose shall be related to the goal of child protective or rehabilitative services; and

3. The confidential character of the information will be preserved to the greatest extent possible.

D. In the following instances, the local department shall not release child protective services information:

1. The local department shall not release the identity of persons reporting incidents of child abuse or neglect, unless court ordered, in accordance with § 63.2-1526 of the Code of Virginia, 42 USC § 5101 et seq., and federal regulations (45 CFR Part 1340).

2. In all complaints or reports that are being investigated jointly with law enforcement, no information shall be released by the local department unless authorized by the law-enforcement officer or his supervisor or the attorney for the Commonwealth pursuant to § 63.2-1516.1 B of the Code of Virginia.

22VAC40-705-180. Training.

A. The department shall implement a uniform training plan for child protective services workers and supervisors. The plan shall establish minimum standards for all child protective services workers and supervisors in the Commonwealth of Virginia.

B. Workers and supervisors shall complete skills and policy training specific to child abuse and neglect investigations and family assessments within the first two years of their employment.

C. All child protective services workers and supervisors shall complete a minimum of 24 contact hours of continuing education or training annually. This requirement begins after completion of initial training mandates and no later than three years from the date of hire.

VA.R. Doc. No. R13-3636; Filed November 12, 2015, 8:49 a.m.