Overall comments: 

--The processes for timelines and communications listed in this proposed regulation are not clear and could result in lack of timeliness, putting a child’s status in limbo for a period of time. 

--The regulations do not state if the child will remain with the relative denied approval while awaiting a decision, as specified in § 63.2-900.1 (D).

1. Suggestion: follow existing processes such as used by DMAS for appeal validation

--Because the purpose of § 63.2-900.1 is to emphasize and protect the value of kinship when making placement decisions so as to minimize the trauma of separation on a child removed from the custody of her parents, the regulation should reference the local board’s duty under  § 63.2-900.2, “Placement of siblings groups” by recognizing as a “relative” for the purpose of this statute a parent or custodian of siblings of the child whose placement is at issue. While a minor sibling cannot become a foster parent, the right of that sibling to have a relationship with a sibling in foster care, placing a child with that child’s parent or custodian should be protected through this regulation. At least 15 states statutorily recognize such a person as a relative receiving preference in placement decisions.

Specific Comments:

1. Regarding A: The regulation states notice is to be provided to the relative in writing by mail to the relative’s last known address “within 14 calendar days of the denial.” Does this mean the notice to the relative must be postmarked within 14 days following the denial? Or received within 14 calendar days?

1. Question: if the denial was not timely sent/received within the 14 days, but the relative contacts the local board and is verbally notified outside the 14 days, does this start the relative’s appeal clock?

1. Question: what recourse does the relative have if the notice is not received; or not received within the 30-day window for the relative to file the appeal?

1. Question: what is the procedure if the notice is misdirected and returned to the local board?

1. Suggestion: “must be provided to the relative in writing […] and must be reasonably calculated to be received by the relative no later than 14 calendar days after the date of the denial. If the email address of the relative has been provided to the local board, the notice must also be provided by email on the date the notice is postmarked.”

1. Regarding B: The “intent to appeal must be received in writing and received … in no more than 30 calendar days from the postmarked date on the written notification from the local board.”
1. Question: What does “in writing” mean? And if mailed, what control does the relative have over when the Office of Appeals receives it? What if the mail is lost? What if the 30th day falls on a weekend/holiday?

1. Suggestion: VDSS already has an appeal form, available at https://www.dss.virginia.gov/files/division/dfs/fc/intro_page/forms/032-02-0671-00-eng.pdf. This or a similar form should be provided to relatives who may wish to appeal.

1. Suggestion: borrow from the Medicaid appeals process:

“An appeal request shall be deemed to be filed timely if it is mailed, faxed, electronically transmitted, or otherwise delivered to the DMAS Appeals Division before the end of last day of filing (30 days plus five mailing days after the date the Agency mailed the notice of adverse action). The date of filing will be determined by: the postmark date, the date of an internal DMAS receipt date-stamp, or the date the request was faxed or hand-delivered.  In computing the time period, the day of the act or event from which the period of time begins to run shall be excluded, and the last day included.  If the time limit would expire on a weekend or state or federal holiday, it shall be extended until the next regular business day. The DMAS Appeals Division will, at its discretion, grant an extension of the time limit for requesting an appeal if failure to comply with the time limit is due to a good cause such as illness of the appellant or their representative, failure to have been notified of the right to appeal, delay due to the postal service or to an incorrect address, or other unusual or unavoidable circumstances.”

1. Regarding C: “The Office of Appeals and Fair Hearings will notify the relative in writing of the hearing date at least 10 calendar days prior to the hearing.”
1. Question: does this mean the relative must receive the notice in writing at least ten days before the hearing? Or only that the notice must be sent at least ten calendar days before the hearing? If the latter, and the notice is mailed, and considering issues with postal service may result in mail sometimes taking two weeks to be delivered, and that there may be weekends and holidays during the 10 days between mailing and the hearing, how can we ensure the relative actually receives actual and timely notice?

1. Suggestion: “The Office of Appeals and Fair Hearings shall schedule a hearing as soon as is practicable, and notify the relative in writing that the appeal has been received and a hearing has being scheduled. The method of providing such notification should be reasonably calculated, under the circumstances, to reach the relative at least 10 calendar days prior to date of the hearing.”

1. Regarding E: “…If the decision of the local board is reversed, the local board shall respond in writing to the Office of Appeals and Fair Hearings within 14 calendar days and confirm…”
1. Suggestion: “If the decision of the local board is reversed, the local board shall respond in writing to the Office of Appeals and Fair Hearings within 14 calendar days and confirm that the relative's request to become a kinship foster parent has been conditionally approved, so long as all approval requirements are completed timely, pursuant to law and policy; along with any steps the local board must take to inform the relatives of the actions needed to timely complete the approval requirements.”

Family members should always be the first resort of fostering a child unless they do not meet the living conditions for safety of the child. It’s not clear on how the child will be displaced during the process. If there are family members available but not fit to care for the child/children they should still be involved in the process of fostering the child. 

Written correspondence should definitely be part of the process of appeal. However, electronic notices and platforms should be available for immediate updates. The goal is to make the process easy while the child is displaced. The post service has been delayed since the pandemic. The kids are dealing with trauma already make the process easier to determine a decision and/ or to be appealed by a family member.