Since more than 180 days have passed since the end of the
stage, a Time Frame Waiver must be granted by the Governor's office.
This waiver was requested on 12/5/2012
Agency Reason: The Proposed Residential Regulations, 6VAC35-41, 6VAC35-71, and 6VAC35-101, have been proceeding through the regulatory process since January 2009 and have been at the Proposed Stage since June 2010.
The proposed regulations encompass an expansive regulatory overhaul of all regulatory requirements affecting the 23 juvenile detention centers, 19 juvenile group homes, 6 juvenile correctional centers, and 2 juvenile halfway houses located in the Commonwealth.
A. History of Residential Regulations
The Board of Juvenile Justice serves as the regulatory authority for secure residential facilities (juvenile secure detention centers and juvenile correctional centers) and group homes/halfway houses operated by the Department or funded through the Virginia Juvenile Community Crime Control Ac. There have been several iterations of regulations governing the residential facilities regulated by the Board. At present, these facilities are governed by two separate regulations: (1) the Standards for Juvenile Residential Facilities (6VAC35-140) and (2) the Standards for the Interim Regulation of Children’s Residential Facilities (6VAC35-51).
The Standards for Juvenile Residential Facilities (6VAC35-140, the “Board Regulation”) was most recently amended by the Board in May 2005 and contains provisions governing all of the types of facilities. This regulation establishes minimum standards for program operations, health care, personnel, facility safety, and physical environment. The regulation contains additional provisions for secure custody facilities, boot camps, work camps, juvenile industries, and independent living programs.
The Standards for the Interim Regulation of Children’s Residential Facilities (6VAC35-51, the “Interim Regulation”) is a reenactment of the Standards for the Interdepartmental Regulation of Children’s Residential Facilities (commonly referred to as the “CORE Regulation”) in its entirety. It contains provisions governing each type of facility regulated by the Board and establishes minimum standards for all aspects of facility operation including personnel, training, physical plant, program operation, behavior management, case management, and medical and mental health services. The regulation contains additional provisions for independent living programs, mother/baby programs, and campsite programs or adventure activities. The Interim Regulation’s provisions are more expansive than those in the Board Regulation.
The CORE Regulation was jointly developed by the Boards of Juvenile Justice; Social Services; Education; and Behavioral Health and Developmental Services (formerly called the Board of Mental Health, Mental Retardation, and Substance Abuse Services). It governed every facility in Virginia that housed a child or a juvenile regardless of the licensing or certifying authority and had been in effect since 1981 with revisions over time. In 2008, the General Assembly passed legislation (Chapter 873 of the 2008 Acts of the General Assembly) that mandated the repeal of the CORE regulation and required each Board to adopt regulations governing the facilities it regulates by October 31, 2009. The Interim Regulation regulation was adopted by the Board in September 2008 in order to comply with this mandate. This was processed as an exempt regulatory action and did not involve a comprehensive review of the regulatory requirements.
Accordingly, the Board, on April 9, 2008, approved consolidating the current regulatory requirements for residential programs and separating them into three regulations governing (1) juvenile correctional centers; (2) juvenile secure detention centers; and (3) juvenile group homes/halfway houses. The review was completed with the goals of enhancing the clarity of the regulatory requirements and achieving improvements that are reasonable, prudent, and will not impose an unnecessary burden on its regulated entities or the public.
The proposed regulations have sections for: (i) general provisions; (ii) administration and personnel; (iii) physical environment; (iv) safety and security; (v) residents' rights; (vi) program operation; (vii) work programs; (viii) health care services; and (ix) behavior management. Facility specific parts are included as needed; i.e., group homes/halfway houses have separate sections for subdivisions of facility programs and juvenile correctional centers have a section for boot camps.
B. Background of the Reviews
Currently the facilities regulated by the Board are governed by both regulations listed above (6VAC35-51 and 6VAC35-140), unless specifically exempted. The current regulatory scheme has encountered several difficulties in application. First, each regulation has the full force and effect of law. Unfortunately, some of the provisions conflict or are contradictory. Additionally, there are numerous exclusions for the different types of facilities from a variety of regulatory provisions. Sometimes it is unclear exactly which facilities are exempted and to which section or subsection such exceptions are applicable. These issues have resulted in some difficulty in interpreting the correct application of the existing regulatory scheme.
To address these issues the Department considered two courses of action: (1) consolidate the two existing regulations into one, or (2) separate the two regulations into three regulations, one for each different “type” of facility regulated by the Board. Given that the different types of facilities regulated by the Board have distinct characteristics, it was concluded that it would be difficult to regulate all such facilities in one single regulation. Thus, in January 2009, the Board approved submission of Notices of Intended Regulatory Actions (NOIRAs) for the establishment of separate regulations governing: (1) juvenile correctional centers (6VAC35-71); (2) secure juvenile detention centers (6VAC35-101); and (3) group homes/ halfway houses (6VAC35-41).
All three NOIRAs were published in the Virginia Register on May 11, 2009, and were subject to a 30-day public comment period. No comments were received on the NOIRAs relating to juvenile detention facilities and group homes/halfway houses. One individual, Liane Rozzell, representing Families and Allies of Virginia Youth, commented on the NOIRA relating to juvenile correctional centers. The comments focused on increasing communication with and involvement of families.
To complete the review/overhaul of the regulations, three committees were convened, one for each “type” of facility.
The committee reviewing juvenile correctional centers consisted of: (1) juvenile correctional center superintendents and assistant superintendents; (2) DJJ’s health administrator; (3) DJJ’s Director of the Behavioral Services Unit; and (4) representatives from DJJ’s Certification Unit, Training Unit, Office of the Ombudsman, and Central Office. Additionally, the Board representative assigned to this committee attended several meetings and received all related electronic communications.
The committee reviewing secure juvenile detention centers consisted of: (1) detention center superintendents and assistant superintendents and (2) representatives from DJJ’s Certification Unit, Division of Community Programs, and Central Office. Additionally, a Board representative was assigned to this committee and received all related electronic communications.
The committee reviewing juvenile group homes consisted of: (1) group home and halfway house administrators and (2) representatives from DJJ’s Certification Unit and Central Office. A Board representative was also assigned to this committee and received all related electronic communications.
Each committee reviewed the existing regulations, section-by-section, and proposed additions, deletions, and modifications with the intent to streamline, clarify, and improve the certification and regulatory processes. The primary intent of this regulatory overhaul is to reduce confusion in applying the regulatory requirements in each type of facility. The committees examined each provision as to whether it (1) was appropriate for the type of facility; (2) was clear in its intent and effect; and (3) was necessary for the proper management of the facility. Amendments were made to accommodate the type of facility’s specific needs and to enhance program and service requirements to best provide for the residents.
At its September 9, 2009 meeting, the Board authorized all three draft residential regulations (6VAC35-41, 6VAC35-71, and 6VAC35-101) for submission to the Proposed Stage of the regulatory process, which includes an Executive Branch review (by the Office of the Attorney General, Department of Planning and Budget, Secretary of Public Safety, and Governor’s Office), publication in the Virginia Register, and a 60-day public comment period.
The public comment periods were open from February 1, 2010 through April 7, 2010, during which the Board held a public hearing. Comments were received from advocates, present and former residents’ family members, administrators and staff from each type of facility, and, related only to juvenile group homes, the Virginia Department of Social Services.
All comments were associated with the applicable “type” of facility and separated by regulatory requirement topic. As applicable, the comments were reviewed by the facility specific committees detailed above and changes, both technical and substantive, were recommended to the proposed regulation. At its June 9, 2010 meeting, the Board authorized the Department to submit the proposed regulations, as amended, for advancement to the Final Stage of the regulatory process. Since that time, the proposed regulations have been undergoing the Executive Branch review. The progress of the regulations through the regulatory process has been stalled due to disagreement regarding language in the proposed 6VAC35-41-560, 6VAC35-71-550, 6VAC35-101-650.
C. Timeline of Regulatory Process for the Residential Regulations
Below is a brief timeline of the major actions taken relating to the proposed Residential Regulations:
May 11, 2009 NOIRA published
September 9, 2009 The Board of Juvenile Justice approved proposed language
February 2, 2010 Proposed language published in the Virginia Register
June 9, 2010 The Board of Juvenile Justice approved final language
June 2011 Executive Branch Review identified language which exceeded the
Board’s Rule making authority (6VAC35-41-560, 6VAC35-71-550,
June 29, 2011 Board of Juvenile Justice insisted on the language approved on
June 9, 2010
January 10, 2012 Board proposed alternative language, modeling on Governor
McDonnell’s Executive Directive #1 (2010)
The request was approved on 6/28/2013