22VAC40-740 Adult Protective Services

REGULATIONS

Vol. 29 Iss. 2 - September 24, 2012

TITLE 22. SOCIAL SERVICES

STATE BOARD OF SOCIAL SERVICES

Chapter 740

Proposed Regulation

Title of Regulation: 22VAC40-740. Adult Protective Services (amending 22VAC40-740-10, 22VAC40-740-21, 22VAC40-740-31, 22VAC40-740-40, 22VAC40-740-50, 22VAC40-740-60, 22VAC40-740-70, 22VAC40-740-80; adding 22VAC40-740-45).

Statutory Authority: §§ 63.2-217 and 63.2-1606 of the Code of Virginia.

Public Hearing Information: No public hearings are scheduled.

Public Comment Deadline: November 23, 2012.

Agency Contact: Paige McCleary, Program Consultant, Division of Family Services, Department of Social Services, 801 East Main Street, Richmond, VA 23219, telephone [phone], FAX [phone], TTY (800) 828-1120, or email [e-mail].

Basis: Sections 63.2-217 and 63.2-1603 through 63.2-1610 of the Code of Virginia provide the legal basis for this regulation. These sections provide general authority for the development of regulations for program operation and authority for the Adult Protective Services Program. Section 63.2-1606 of the Code of Virginia requires that the board establish by regulation a process for imposing and collecting civil penalties against mandated reporters who fail to report and a process for appeal of the imposition of a penalty pursuant to § 2.2-4026 of the Administrative Process Act.

Purpose: This proposed regulatory action amends and provides a general review of 22VAC40-740, Adult Protective Services. 22VAC40-740 establishes standards for adult protective services (APS) investigations and the provision of services after an investigation has been completed. It also provides guidance for mandated reporting of adult abuse, neglect, and exploitation and the process for imposing a civil penalty on mandated reporters for failure to report. The regulation also addresses when and to whom APS information may be disclosed. The regulation ensures consistent definitions and actions are used for reporting adult abuse, neglect, and exploitation; for receiving and investigating those reports; and during the provision of services to adults.

The proposed regulatory action is necessary to ensure that regulation content appropriately defines terms used throughout the regulation, clearly addresses APS investigations and service provision, and outlines the process for the imposition of a civil penalty. Clarity in the regulation content helps APS workers meet the adults' safety and welfare needs throughout investigations and during the provision of services.

Proposed changes to the regulation also provide the opportunity for an alleged perpetrator to request a review of the local department of social services' investigation findings when the disposition is needs protective services and accepts, needs protective services and refuses, or need for protective services no longer exists. These changes ensure that alleged perpetrators are guaranteed due process.

Substance: Many of the proposed changes are technical, such as removing outdated or inaccurate definitions or guidance. Regulation content was clarified to comport with requirements regarding data entry requirements of the state web-based case management and reporting system (ASAPS). The section addressing the imposition of a civil penalty was clarified to provide improved guidance for a director of a local department of social services and more thoroughly explain how a mandated reporter may appeal a decision to impose a civil penalty. In addition, a review by the commissioner's designee of the request to impose a civil penalty was added. A right of review of the local department of social services' investigative findings, which may be requested by the alleged perpetrator, was added. Regulation content describing the right to review was added to ensure the alleged perpetrator has a right to due process.

Issue: Amendments to the regulation content ensure that the needs of elderly individuals and adults with disabilities are met during investigations and service provision. Amendments to the section addressing civil penalties clarify the process and more thoroughly explain the responsibilities of individuals involved in the imposition of a civil penalty.

Most of the amendments to the regulation clarify but do not increase local department of social services staffs' responsibilities as amendments comport with current Department of Social Services guidance on entering information into ASAPS. However the addition of a review hearing for the perpetrator will require additional time on behalf of the local department of social services staff and director to prepare for and to conduct the right to review hearing.

The regulatory action poses no disadvantages to the public.

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 amend its regulations that govern adult protective services to clarify regulatory content, add a review of requests to impose civil penalties and add a new section to lay out the due process rights of alleged perpetrators.

Result of Analysis. Benefits likely outweigh costs for all proposed changes.

Estimated Economic Impact. Most of the changes that the Board proposes for these regulations only move around current requirements or reword current requirements. Regulated entities are unlikely to incur any costs on account of these changes but will get the benefit of added clarity.

Current regulations allow civil fines to be leveled against mandated abuse reporters who fail to report suspected abuse of vulnerable adults. These proposed regulations add a requirement that all letters to affected mandated reporters go by certified mail with a return receipt requested and also add a process by which the commissioner's designee will review any requests to impose civil penalties. Board staff reports that these requirements will cost Local Departments of Social Services (LDSS) approximately $5.00 per letter sent to mandated reporters who are subject to possible civil penalties. Mandated reporters will benefit from these regulatory changes that ensure every effort is made to make sure they stay informed and have a review process before civil penalties are imposed.

The Board also proposes to add new regulatory language that lays out the process by which individuals who have founded allegations of abuse, neglect or exploitation of a vulnerable adult may appeal that LDSS ruling. Board staff reports that adding this review process will cost the state approximately $121,000. These costs are likely outweighed by the benefits of having due process protections that accrue to both the public at large and to alleged perpetrators.

Businesses and Entities Affected. These proposed regulatory changes will affect all 120 local Departments of Social Services.

Localities Particularly Affected. No locality will be particularly affected by this proposed regulatory action.

Projected Impact on Employment. This proposed regulatory action is unlikely to have any effect on employment in the Commonwealth.

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

Small Businesses: Costs and Other Effects. No small business is likely to incur any costs on account of this regulatory action.

Small Businesses: Alternative Method that Minimizes Adverse Impact. No small business is likely to incur any costs on account of this regulatory action.

Real Estate Development Costs. This regulatory action will likely have no effect on real estate development costs in the Commonwealth.

Legal Mandate. The Department of Planning and Budget (DPB) has analyzed the Board he economic impact of this proposed regulation in accordance with § 2.2-4007.04 of the Administrative Process Act and Executive Order Number 14 (10). Section 2.2-4007.04 requires that such economic impact analyses include, but need not be limited to, the projected number of businesses or other entities to whom the regulation would apply, the identity of any localities and types of businesses or other entities particularly affected, the projected number of persons and employment positions to be affected, the projected costs to affected businesses or entities to implement or comply with the regulation, and the impact on the use and value of private property. Further, if the proposed regulation has adverse effect on small businesses, § 2.2-4007.04 requires that such economic impact analyses include (i) an identification and estimate of the number of small businesses subject to the regulation; (ii) the projected reporting, recordkeeping, and other administrative costs required for small businesses to comply with the regulation, including the type of professional skills necessary for preparing required reports and other documents; (iii) a statement of the probable effect of the regulation on affected small businesses; and (iv) a description of any less intrusive or less costly alternative methods of achieving the purpose of the regulation. The analysis presented above represents DPB's best estimate of these economic impacts.

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:

The proposed action (i) clarifies regulation content that may be confusing or unclear; (ii) comports regulation text with guidance on the data entry requirements in the adult services/adult protective services web-based case management and reporting system; (iii) adds a review by the commissioner's designee of the request to impose a civil penalty; and (iv) adds a new section to address notifications to alleged perpetrators and the right of the perpetrator to request a review of the local department of social services' investigation findings that result in one of the following dispositions: needs protective services and accepts, needs protective services and refuses, or need for protective services no longer exists.

22VAC40-740-10. Definitions.

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

"Abuse" means the willful infliction of physical pain, injury or mental anguish or unreasonable confinement.

"Adult" means any person in the Commonwealth who is abused, neglected, or exploited, or is at risk of being abused, neglected, or exploited; and is 18 years of age or older and incapacitated, or is 60 years of age and older.

"Adult protective services" means the receipt, investigation and disposition of complaints and reports of adult abuse, neglect, and exploitation of adults 18 years of age and over who are incapacitated and adults 60 years of age and over by the local department of social services. Adult protective services also include the provision of casework and care management by the local department in order to stabilize the situation or to prevent further abuse, neglect, and exploitation of an adult at risk of abuse, neglect and exploitation. If appropriate and available, adult protective services may include the direct provision of services by the local department or arranging for home-based care, transportation, adult day services, meal service, legal proceedings, alternative placements and other activities to protect the adult and restore self-sufficiency to the extent possible.

"ASAPS" means the state computer system used by local departments to document reports, provide case management for individuals who are receiving adult protective services, and produce data management and statistical information. ASAPS is the designated state automated system of record for adult protective services.

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

"Commissioner" means the Commissioner of the Department.

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

"Department" or "DSS" means the Virginia Department of Social Services.

"Director" means the director, or his delegated representative designee, of the department of social services of the city or county in which the adult resides or is found located.

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

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

"Exploitation" means the illegal use of an incapacitated adult or his resources for another's profit or advantage. This includes acquiring an adult's resources through the use of the adult's mental or physical incapacity, the disposition of the incapacitated adult's property by a second party to the advantage of the second party and to the detriment of the incapacitated adult, misuse of funds, acquiring an advantage through threats to withhold needed support or care unless certain conditions are met, or persuading an incapacitated adult to perform services including sexual acts to which the adult lacks the capacity to consent. Exploitation also includes making the adult the subject of sexual or degrading imagery including but not limited to photographs or audio or visual recordings.

"Guardian" means a person who has been legally invested with the authority and charged with the duty of taking care of the person and managing his property and protecting the rights of the person who has been declared by the circuit court to be incapacitated and incapable of administering his own affairs. The powers and duties of the guardian are defined by the court and are limited to matters within the areas where the person in need of a guardian has been determined to be incapacitated.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

6. Medical neglect includes, but is not limited to, the withholding of medication or aids needed by the adult such as dentures, eye glasses, hearing aids, walker, etc. It also includes the unauthorized administration of prescription drugs, over- or under-medicating, and the administration of drugs for other than bona fide medical reasons, as determined by a licensed health care professional; and

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

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

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

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

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

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

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

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

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

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

4. The local department receiving the report is a local department of jurisdiction as described in 22VAC40-740-21.

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

22VAC40-740-21. The adult protective services investigation.

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

B. The validity of the report shall be determined. Investigations shall be initiated by the local department not later than 24 hours from the time a valid report was received in the local department.

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

2. When determining the need for an immediate response, the social adult protective services worker shall consider the following factors:

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

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

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

d. The physical and mental condition of the adult.

3. A face-to-face contact with the alleged victim shall be made as soon as possible but not later than five calendar days after the initiation of the investigation unless there are valid reasons that the contact could not be made. Those reasons shall be documented in ASAPS in the Adult Protective Services Assessment Narrative as described in 22VAC40-740-40. The timing of the interview with the alleged victim should shall occur in a reasonable amount of time pursuant to circumstances in subdivision 2 of this subsection.

C. The report shall be reduced to writing within 72 hours of receiving the report on a form prescribed by the department. Within 72 hours of receiving the report, the local department shall enter the report into ASAPS.

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

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

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

G. The investigation shall include consultation with others having knowledge of the facts of the particular case.

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

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

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

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

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

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

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

22VAC40-740-31. Application for the provision of services.

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

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

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

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

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

2. Someone authorized by the adult; or

3. The local department.

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

22VAC40-740-40. Assessment narrative and disposition.

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

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

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

3. The extent that the adult's environment, functional ability, physical health, mental or psychosocial health, support system, income, and resources contribute to the alleged abuse, neglect, or exploitation of the adult or places the adult at risk of abuse, neglect, or exploitation.

3. 4. The risk of serious harm to the adult.

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

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

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

C. The disposition that the adult needs protective services shall be based on the preponderance of evidence that abuse, neglect or exploitation has occurred or that the adult is at risk of abuse, neglect or exploitation. The disposition shall be documented in ASAPS.

D. Possible dispositions.

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

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

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

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

d. Involuntary services are ordered by the court pursuant to § 63.2-1609 or Article 1 (§ 37.2-1000 et seq.) of Chapter 10 of Title 37.2 of the Code of Virginia.

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

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

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

3. Need for protective services no longer exists. This disposition shall be used when the subject of the report no longer needs protective services. A review of the facts shows a preponderance of evidence that adult abuse, neglect or exploitation has occurred. However, at the time the investigation is initiated or during the course of the investigation, the adult who is the subject of the report ceases to be at risk of further abuse, neglect or exploitation.

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

5. Invalid. This disposition shall be used when, after the investigation has been initiated, the report is found not to have met the criteria of a valid report.

E. The investigation shall be completed and a disposition assigned by the local department within 45 days of the date the report was received. If the investigation is not completed within 45 days, the record shall document reasons.

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

G. Notification upon the completion of a facility investigation shall be made in writing and shall be mailed to appropriate individuals in accordance with DSS guidance.

H. The local department shall notify the alleged perpetrator in writing within 10 working days of the completion of the investigation, if the disposition is needs protective services and accepts, needs protective services and refuses, or need for protective services no longer exists. If licensing or regulatory agencies were also notified of the disposition, the notification shall state the name of these agencies and the date they were notified. The notification shall also state that if the alleged perpetrator disagrees with the findings of the investigation that he has the right to request a review by the director and to amend the record if there are any factual errors. The notification shall include information used by the local department to support the findings of the investigation.

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

22VAC40-740-45. Right to review.

A. Right to review is the process by which the alleged perpetrator may request amendment of the record when the investigation has resulted in a disposition of needs protective services and accepts, needs protective services and refuses, or need no longer exists.

B. If the alleged perpetrator is found to have committed abuse, neglect, or exploitation, that alleged perpetrator may, within 30 calendar days of being notified of that determination, submit a written request for an amendment of the determination and the local department's related records.

C. The local department shall conduct an informal review hearing within 30 calendar days of receiving a timely notice of a request to review.

D. The director, or the director's designee, shall preside over the hearing. With the exception of the director, no person whose regular duties include substantial involvement with adult abuse, neglect, or exploitation cases shall preside over the hearing.

E. The alleged perpetrator may be represented by counsel.

F. The alleged perpetrator shall be entitled to present (i) the testimony of witnesses, documents, factual data, or other submissions of proof or (ii) arguments.

G. The director or his designee shall have the authority to sustain, amend, or reverse the local department's findings.

H. The director or his designee shall notify the alleged perpetrator, in writing, of the results of the hearing within 30 calendar days of the date of the hearing. The decision of the director or his designee shall be final. Notification of the results of the hearing shall be mailed, certified with return receipt, to the alleged perpetrator.

22VAC40-740-50. Disclosure of adult protective services information.

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

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

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

1. Department of Behavioral Health and Developmental Services;

2. Virginia Office for Protection and Advocacy;

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

4. Department for Aging and Rehabilitative Services;

5. Department of Health, including the Center for Quality Health Care Services and Consumer Protection Office of Licensure and Certification and the Office of the Chief Medical Examiner;

6. Department of Medical Assistance Services;

7. Department of Health Professions;

8. Department for the Blind and Vision Impaired;

9. Department for the Deaf and Hard-of-Hearing;

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

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

11. 12. Law-enforcement agencies;

12. 13. Medical examiners;

13. 14. Adult fatality review teams;

14. 15. Prosecutors; and

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

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

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

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

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

2. A physician who is treating an adult whom he reasonably suspects is abused, neglected or exploited;

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

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

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

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

7. The Social Security Administration; or

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

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

1. When disclosure is ordered by a court;

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

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

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

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

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

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

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

5. Disposition of the adult protective services report; and

6. The protective service needs of the adult.

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

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

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

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

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

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

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

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

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

22VAC40-740-60. Opening a case for service provision.

A. A range of services must shall be made available to any abused, neglected and exploited adult or to adults at risk of abuse, neglect or exploitation to protect the adult and to prevent any future abuse, neglect or exploitation.

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

a. The service needs are identified The disposition is that the adult needs protective services;

b. The disposition is that the adult needs protective services The services needs are identified; and

c. The adult or the adult's legal guardian or conservator agrees to accept protective services or protective services are ordered by the court.

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

3. Implementation of the service plan. Implementation of the service plan is the delivery of the services necessary to provide adequate protection to the adult. The services may be delivered directly, through purchase of service, through informal support, or through referral. The continuous monitoring of the adult's progress and the system's response is a towards reaching the service plan goals and revising the objectives and tasks in response to that progress are part of the implementation.

4. Local departments are required to provide If a local department is providing services beyond the investigation, these services are required to be provided to the extent that federal or state matching funds are made available.

22VAC40-740-70. Civil penalty for nonreporting.

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

B. Civil penalties shall be imposed as follows:

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

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

B. C. Civil penalties for all mandated reporters except law-enforcement officers shall be imposed as described in 22VAC40-740-80 determined by a court of competent jurisdiction, in its discretion.

22VAC40-740-80. Imposition of civil penalty.

A. Local department review and recommendation.

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

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

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

B. Review by the commissioner or his designee Statement from mandated reporter.

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

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

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

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

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

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

The mandated reporter may prepare a written statement concerning his failure to report and provide the statement to the commissioner. The commissioner must receive the mandated reporter's written statement within 45 calendar days from the date of the director's letter to the mandated reporter.

C. Review by the commissioner's designee.

1. The commissioner's designee shall review the director's statement of fact, the mandated reporter's written statement, and any supporting documentation provided by the director in determining whether to impose a civil penalty. A statement received after the time required by 22VAC40-740-80 B shall not be considered by the commissioner.

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

3. The commissioner's designee shall notify the mandated reporter in writing whether a civil penalty will be recommended. The written notification shall include specifics of the violation charged, the reasons for the imposition of the civil penalty and the amount of the penalty. The letter shall be sent to the mandated reporter by registered or certified mail, return receipt requested, no later than 30 calendar days after the commissioner receives the mandated reporter's written statement. The date of the notification shall be the date of the commissioner's designee's letter to the mandated reporter. The designee also shall send a copy of the letter to the director who recommended the imposition of the civil penalty. If the commissioner's designee recommends imposition of a civil penalty, the mandated reporter shall have 30 calendar days from the date of the letter to submit a written statement requesting that the commissioner reconsider the designee's decision. A statement received after the time required by this subsection shall not be considered by the commissioner.

D. Review by the commissioner. If the mandated reporter submits a written request for review, the commissioner shall review his designee's recommendation and the mandated reporter’s request for review and decide whether a civil penalty shall be imposed. The commissioner shall notify the mandated reporter in writing whether a civil penalty will be imposed and the amount of the penalty. The letter shall include specifics of the violation charged and describe the reason for the imposition of the civil penalty. The letter shall be sent to the mandated reporter by registered or certified mail, return receipt requested, no later than 30 calendar days after the commissioner receives the mandated reporter's written request to reconsider the designee's decision. The date of the notification shall be the date of the commissioner's letter.

E. If the mandated reporter does not request a review by the commissioner within the time required by subdivision C 3 of this section, the commissioner shall notify the mandated reporter in writing that a civil penalty will be imposed. The written notification shall include specifics of the violation charged, the reasons for the imposition of the civil penalty, and the amount of the penalty. The letter shall be sent to the mandated reporter by registered or certified mail, return receipt requested.

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

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

VA.R. Doc. No. R11-2684; Filed September 4, 2012, 2:59 p.m.