State Board of Social Services

The State Board of Social Services announces a 30-day public comment period on proposed regulation 22VAC40-740, Adult Protective Services, Section 80.  The entire proposed regulation was published in the Virginia Register on September 24, 2012, and public comment ended November 23, 2012.   As published, 22VAC40-740-80 (B) included a new provision that was not underlined to indicate it was a new provision.   

 In order to provide the public with notice of the new provision in 22VAC40-740-80, and opportunity to comment, the Department of Social Services will receive comment on Section 80 beginning May 6, 2013, through June 5, 2013.

 Comment should be submitted to the following agency contact:  Paige McCleary, Program Consultant, Department of Social Services, 801 E. Main Street, Richmond, VA 23219, telephone (804) 726-7536, FAX (804) 726-7895, TTY (800) 828-1120, or paige.mccleary@dss.virginia.gov.

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.