6VAC35-20-37. Director's authority to take immediate administrative action.

A. Nothing in this regulation shall be construed to limit the director's authority to take immediate administrative action in accordance with law whenever (i) evidence is found of any life, health, or safety violation or (ii) a program is not in substantial noncompliance compliance with board-approved standards, policies, or local plan for Virginia Juvenile Community Crime Control Act programs. Such administrative action may include, but is not limited to (a) withholding funds; (b) removing juveniles from the program; or (c) placing the program on administrative probation for up to six months pending certification action by the board. In taking such action, the department shall notify both the program, the administrative entity that the program reports to, and the board, in writing, of the reason for the administrative action, and the action the program must take to correct the situation.

B. In accordance with subsection A of this section and pursuant to the provisions set forth in § 66-24 of the Code of Virginia, the director may issue a summary order of suspension of the license or certificate of any group home or residential facility so regulated by the department.

1. Conditions or practices existing in the home or facility posing an immediate and substantial threat to the health, safety, and welfare of the residents include:

a. Violations of any provision of applicable laws or applicable regulations made pursuant to such laws;

b. Permitting, aiding, or abetting the commission of any illegal act in the regulated home or facility;

c. Engaging in conduct or practices that are in violation of statutes related to abuse or neglect of children;

d. Deviating significantly from the program or services for which a license or certificate was issued without obtaining prior written approval from the regulatory authority or failing to correct such deviations within the specified time; or

e. Engaging in a willful action or gross negligence that jeopardizes the care or protection of the resident.

2. The director shall immediately notify the licensee or certificate holder verbally and by facsimile of the issuance of the preliminary order of suspension and the opportunity for a hearing before the director or his designee within three working days of the issuance of the preliminary summary order of suspension.

a. The licensee or certificate holder may decline the opportunity for an appeal to the director or his designee.

b. Whenever an appeal is requested and a criminal charge is also filed against the appellant involving the same conduct, the appeal process shall be stayed until the criminal prosecution is completed. During such stay, the licensee's or certificate holder's right of access to the records of the department regarding the matter being appealed shall also be stayed. Once the criminal prosecution in court has been completed, the department shall advise the appellant in writing of his right to resume his appeal within the timeframes provided by law and regulation.

3. The licensee or certificate holder may appear before the director or his designee by personal appearance or by telephone. Any documents filed may be transmitted by facsimile and the facsimile and any signatures thereon shall serve, for all purposes, as an original document.

a. Upon request, the department shall provide the appellant a summary of the information used in making its determination. Information prohibited from being disclosed by state or federal law or regulation shall not be released. In the case of any information being withheld, the licensee or certificate holder shall be advised of the general nature of the information and the reasons, of privacy or otherwise, that it is being withheld.

b. The director or his designee shall preside over the appeal. With the exception of the director, no person whose regular duties include substantial involvement with the certification or licensing of the facilities shall preside over the appeal.

(1) The licensee or certificate holder may be represented by counsel.

(2) The licensee or certificate holder shall be entitled to present the testimony of witnesses, documents, factual data, arguments, or other submissions of proof.

4. The director or his designee shall have the authority to sustain, amend, or reverse the summary suspension order. The director or his designee shall notify the licensee or certificate holder in writing of the results of the appeal within 10 days of the hearing. Notification of the results of the appeal before the director or his designee shall be mailed certified with return receipt to the licensee or certificate holder.

a. The chair of the board must be immediately notified when the director issues a final order of summary suspension. In accordance with 6VAC35-20-65, the director shall report to the board no later than its next regularly scheduled meeting the action taken.

b. If the licensee or certificate holder is not satisfied, the licensee or certificate holder may dispute the noncompliance finding in accordance with 6VAC35-20-67.

Statutory Authority

§§ 16.1-233, 66-10, and 66-24 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 19, Issue 23, eff. September 1, 2003.