In addition to the definitions contained in 22VAC40-705-10, the following words and terms when used in conjunction with this chapter shall have the following meanings unless the context clearly indicates otherwise:
"Child day program" means a regularly operating
service arrangement for children where, during the absence of a parent or
guardian, a person or organization has agreed to assume responsibility for the
supervision, protection, and well-being of
children as defined in § 63.2-100
of the Code of Virginia a child younger than 13 years of age for less
than a 24-hour period.
"Child-placing agency" means any person who places children in foster homes, adoptive homes, or independent living arrangements pursuant to § 63.2-1819 of the Code of Virginia or a local board that places children in foster homes or adoptive homes pursuant to §§ 63.2-900, 63.2-903, and 63.2-1221 of the Code of Virginia. Officers, employees, or agents of the Commonwealth, or any locality acting within the scope of their authority as such, who serve as or maintain a child-placing agency, shall not be required to be licensed.
"Facility" means the generic term used to describe the setting in out of family abuse or neglect and for the purposes of this regulation includes schools (public and private), private or state-operated hospitals or institutions, licensed or religiously exempted child day programs, and residential facilities.
"Facility administrator" means the on-site individual responsible for the day-to-day operation of the facility.
"Foster home" means a residence licensed by a child-placing agency in which any child, other than a child by birth or adoption of such person, resides as a member of the household.
"Participate" means to take part in the activities of the joint investigation as per a plan for investigation developed by the CPS worker with the facility administrator or regulatory authority or both.
"Physical plant" means the physical
structure or premises of the facility.
"Regulatory authority" means the department or state board that is responsible under the Code of Virginia for the licensure or certification of a facility for children.
"Residential facility" means a publicly or privately
owned facility, other than a private family home, where 24-hour care,
maintenance, protection, and guidance is provided to children separated from
their parents or legal guardians, that is subject to licensure or certification
pursuant to the provisions of the Code of Virginia
and includes, but is not
limited to, group homes, secure facilities, temporary care facilities, and
respite care facilities. Part II
Out of Family Investigation Policy
Valid For the purpose of this chapter, valid
complaints of child abuse or neglect involving caretakers in out of family settings
are for the purpose of this chapter valid complaints in state licensed and
religiously exempted child day programs, private and public schools,
residential facilities, hospitals, or institutions. These valid complaints in
a facility or foster home shall be investigated by qualified staff employed
by local departments of social services.
Staff shall be determined to be qualified based on
identified completion of an out of family training course as approved
by the department. All staff involved in investigating a valid complaint
must be qualified.
This regulation is limited in scope to the topics contained
in this chapter. All issues regarding investigations, findings,
and appeals are found in Child Protective Services, 22VAC40-705, and as such
are cross referenced and incorporated into and apply to out of family cases to
the extent that they are not inconsistent with this regulation. In addition to the authorities and the responsibilities
specified in department policy for all child protective services
investigations, the policy for investigations in out of family settings is set
out in 22VAC40-730-30 through 22VAC40-730-130.
22VAC40-730-40. Involvement of regulatory agencies.
The authority of the local department to investigate valid
complaints of alleged child abuse or neglect in
regulated facilities or
foster homes overlaps with the authority of the public agencies which
that have regulatory responsibilities for these facilities to
investigate alleged violations of standards.
1. For valid complaints
in state regulated facilities and
religiously exempted child day programs, the local department shall contact
the appropriate regulatory authority and share the valid
complaint information. The regulatory authority will appoint a staff person to
participate in the investigation to determine if there are regulatory concerns.
CPS assigned child protective services (CPS)
worker assigned to investigate and the appointed regulatory staff person
will discuss their preliminary joint investigation plan.
a. The CPS worker and the regulatory staff person shall review their respective needs for information and plan the investigation based on when these needs coincide and can be met with joint interviews or with information sharing.
b. The investigation plan must keep in focus the
requirements to be met by each party the CPS worker and regulatory
authority as well as the impact the investigation will have on the
facility's staff, the victim child or children, and the other children
at the facility.
22VAC40-730-70. Contact with the facility administrator.
CPS child protective services (CPS)
worker shall initiate contact with the facility administrator or designee at
the onset of the investigation.
B. The CPS worker shall inform the facility administrator or
designee of the details of the valid complaint. When the administrator or
designee chooses to participate in the joint investigation, he will be invited
to participate in developing the plan for investigation, including decisions
about who is to be present in interviews. If the administrator or designee is
the alleged abuser or neglector, this contact should be initiated with the
individual's superior, which may be the board of directors, etc. If or
if there is no superior, the CPS worker may use discretion in sharing
information with the administrator so long as such disclosure is consistent
with and does not conflict with law or regulation.
C. Arrangements are to be made for:
1. Necessary interviews;
2. Observations including the physical plant; and
3. Access to information, including review of pertinent policies and procedures.
D. The CPS worker shall keep the facility administrator or designee apprised of the progress of the investigation. In a joint investigation with a regulatory staff person, either party may fulfill this requirement.
22VAC40-730-115. Procedures for conducting an investigation of a teacher, principal, or other person employed by a local school board or employed in a nonresidential school operated by the Commonwealth.
A. Each local department of social services and local school division shall adopt a written interagency agreement as a protocol for investigating child abuse and neglect reports against school personnel. The interagency agreement shall be based on recommended procedures for conducting investigations developed by the Departments of Education and Social Services.
B. These procedures for investigating school personnel amplify
or clarify other Child Protection Services
In determining the validity of a report of suspected
abuse or neglect pursuant to § 63.2-1511 of the Code of Virginia, the
local department must consider whether the school employee used reasonable and
necessary force. The use of reasonable and necessary force does not constitute
a valid report If a teacher, principal, or other person employed by a
local school board or employed in a school operated by the Commonwealth is
suspected of abusing or neglecting a child in the course of his educational
employment, the complaint shall be investigated in accordance with §§
63.2-1503, 63.2-1505, and 63.2-1516.1 of the Code of Virginia. Pursuant to §
22.1-279.1 of the Code of Virginia, no teacher, principal, or other person
employed by a school board or employed in a school operated by the Commonwealth
shall subject a student to corporal punishment. However, this prohibition of
corporal punishment shall not be deemed to prevent (i) the use of incidental,
minor, or reasonable physical contact or other actions designed to maintain
order and control; (ii) the use of reasonable and necessary force to quell a
disturbance or remove a student from the scene of a disturbance that threatens
physical injury to persons or damage to property; (iii) the use of reasonable
and necessary force to prevent a student from inflicting physical harm on
himself; (iv) the use of reasonable and necessary force for self-defense or the
defense of others; or (v) the use of reasonable and necessary force to obtain
possession of weapons or other dangerous objects or controlled substances or
paraphernalia that are upon the person of the student or within the student's
control. In determining whether the actions of a teacher, principal, or other
person employed by a school board or employed in a school operated by the Commonwealth
are within the exceptions provided in this subsection, the local department
shall examine whether the actions at the time of the event that were made by
such person were reasonable. 2. The local department shall conduct a face-to-face
interview with the person who is the subject of the valid complaint or report. 3. At the onset of the initial interview with the alleged
abuser or neglector, the local department shall notify him in writing of the
general nature of the valid complaint and the identity of the alleged child
victim regarding the purpose of the contacts. 4. The written notification shall include the information
that the alleged abuser or neglector has the right to have an attorney or other
representative of his choice present during his interviews. However, the
failure by a representative of the Department of Social Services to so advise
the subject of the valid complaint shall not cause an otherwise voluntary
statement to be inadmissible in a criminal proceeding. 5. 2. If the local department determines that the
alleged abuser's actions were within the scope of his employment and were taken
in good faith in the course of supervision, care, or discipline of
students, then the standard for determining a founded finding of abuse or neglect
is whether such acts or omissions constituted gross negligence or willful
misconduct. 6. Written notification of the findings shall be submitted
to the alleged abuser or neglector. The notification shall include a summary of
the investigation and an explanation of how the information gathered supports
the disposition. 7. The written notification of the findings shall inform the
alleged abuser or neglector of his right to appeal. 8. The written notification of the findings shall inform the
alleged abuser or neglector of his right to review information about himself in
the record with the following exceptions: a. The identity of the person making the report. b. Information provided by any law-enforcement official. c. Information that may endanger the well-being of the
child. d. The identity of a witness or any other person if such
release may endanger the life or safety of such witness or person. No information shall be released by the local department in
cases that are being criminally investigated unless the release is authorized
by the investigating law-enforcement officer or his supervisor or the local
attorney for the Commonwealth.
Monitoring of cases for compliance. (Repealed.) A sample of cases will be reviewed by department staff to
ensure compliance with policies and procedures. Article 2
Local Staff Qualifications in Out of Family Investigations
A. In order to be determined qualified to conduct
investigations in out of family settings, local
CPS child protective
services (CPS) workers shall meet minimum education standards established
by the department including : 1. Documented competency in designated general
knowledge and skills and specified out of family knowledge and skills; and 2.
Completion completion of an out of family policy
training course as approved by the department.
B. The department and each local department shall maintain a roster of personnel determined qualified to conduct these out of family investigations.
22VAC40-730-140. Protocol for out of family investigations.
For out of family investigations, the following shall be completed, which are consistent with 22VAC40-705:
1. The local department shall conduct a face-to-face interview with the alleged abuser or neglector.
2. At the onset of the initial interview with the alleged abuser or neglector, the local department shall notify him in writing of the general nature of the valid complaint and the identity of the alleged child victim regarding the purpose of the contacts.
3. The written notification shall include the information that the alleged abuser or neglector has the right to have an attorney or other representative of his choice present during his interviews.
4. If the alleged abuser or neglector has been arrested, statements, or any evidence derived therefrom, made to local department child protective services personnel, or to any person performing the duties of such personnel, by any person accused of the abuse, injury, neglect, or death of a child after the arrest of such person shall not be used in evidence in the case-in-chief against such person in the criminal proceeding on the question of guilt or innocence over the objection of the accused, unless the statement was made after such person was fully advised (i) of his right to remain silent; (ii) that anything he says may be used against him in a court of law; (iii) that he has a right to the presence of an attorney during any interviews; and (iv) that if he cannot afford an attorney, one will be appointed for him prior to any questioning.
5. The written notification of the findings shall inform the alleged abuser or neglector of his right to appeal.
6. The written notification of the findings shall inform the alleged abuser or neglector of his right to review information about himself in the record with the following exceptions:
a. The identity of the person making the report.
b. Information provided by any law-enforcement official.
c. Information that may endanger the well-being of the child.
d. The identity of a witness or any other person if such release may endanger the life or safety of such witness or person.
7. No information shall be released by the local department in cases that are being criminally investigated unless the release is authorized by the investigating law-enforcement officer or his supervisor or the local attorney for the Commonwealth.