Virginia Law

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 health, welfare, or safety violation or (ii) a program or facility is not in compliance with regulatory requirements or the Virginia Juvenile Community Crime Control Act requirements. Such administrative action may include, but is not limited to (a) withholding funds; (b) removing juveniles from the program or facility; (c) placing the program or facility on probationary certification status for up to six months pending review by the board pursuant to 6VAC35-20-115; or (d) summarily suspending the certificate pursuant to subsection B of this section. In taking such action, the department shall notify the program or facility administrator, the administrative entity to which the program or facility reports, and the board, in writing, of the reason for the administrative action and the action the program or facility must take to correct the violation.

B. In accordance with subsection A of this section, the director may issue a preliminary summary suspension order of the certificate of the juvenile residential facility regulated by the board as follows:

1. A preliminary summary suspension order may be issued when conditions or practices exist in the facility that pose an immediate and substantial threat to the health, welfare, or safety of the residents including, but not limited to, the following:

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 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 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 upon issuance of the preliminary summary suspension order and without delay notify the certificate holder verbally and in writing via (i) facsimile, (ii) electronic mail, or (iii) hand delivery of the issuance of the preliminary order of suspension and the opportunity for a hearing before the director or designee within three business days of the issuance of the preliminary summary suspension order. The chair of the board must be notified immediately when the director issues a preliminary summary suspension order. In accordance with 6VAC35-20-36.1, the director shall report the action taken to the board no later than its regularly scheduled meeting.

a. The certificate holder may decline the opportunity for an appeal to the director or 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 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 time frames provided by law and regulation.

3. The certificate holder may appear before the director or 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 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 designee shall preside over the appeal. With the exception of the director, no person whose regular duties include substantial involvement with the certification of the facilities shall preside over the appeal.

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

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

4. The director or designee shall have the authority to sustain, amend, or reverse the preliminary summary suspension order. If sustained or amended, the order is considered final. The director or designee shall notify the certificate holder in writing of the results of the appeal and of the right to appeal the final order to the appropriate circuit court within 10 business days of the decision. Notification of the results of the appeal before the director or designee shall be mailed certified with return receipt to the certificate holder.

a. The chair of the board must be immediately notified when the director issues a final summary suspension order. In accordance with 6VAC35-20-36.1, the director shall report the action taken to the board no later than its next regularly scheduled meeting.

b. If the certificate holder is not satisfied, the certificate holder may dispute the noncompliance finding in accordance with 6VAC35-20-90.