Administrative Code

Virginia Administrative Code
Title 22. Social Services
Agency 40. Department of Social Services
4/9/2020

Chapter 730. Investigation of Child Abuse and Neglect in Out of Family Complaints

22VAC40-730-10. Definitions.

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 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.

Statutory Authority

§ 63.2-217 of the Code of Virginia.

Historical Notes

Derived from VR615-45-5 § 1.1, eff. January 26, 1994; amended, Virginia Register Volume 19, Issue 3, eff. November 20, 2002; Volume 22, Issue 2, eff. November 2, 2005; Volume 30, Issue 6, eff. January 1, 2014; Volume 35, Issue 23, eff. August 23, 2019.

22VAC40-730-20. General.

For the purpose of this chapter, valid complaints of child abuse or neglect involving 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 completion of an out of family training course as approved by the department.

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.

Statutory Authority

§ 63.2-217 of the Code of Virginia.

Historical Notes

Derived from VR615-45-5 § 2.1, eff. January 26, 1994; amended, Virginia Register Volume 19, Issue 3, eff. November 20, 2002; Volume 30, Issue 6, eff. January 1, 2014; Volume 35, Issue 23, eff. August 23, 2019.

22VAC40-730-30. Safety assessment.

If the valid complaint information received is such that the local department is concerned for the child's immediate safety, contact must be initiated with the facility administrator immediately to ensure the child's safety. If, in the judgment of the child protective services/CPS worker, the situation is such that the child or children should be immediately removed from the facility, the parent or parents, guardian or agency holding custody shall be notified immediately to mutually develop a safety plan which addresses the child's or children's immediate safety needs.

Statutory Authority

§ 63.2-217 of the Code of Virginia.

Historical Notes

Derived from VR615-45-5 § 2.2, eff. January 26, 1994; amended, Virginia Register Volume 30, Issue 6, eff. January 1, 2014.

22VAC40-730-40. Involvement of regulatory agencies.

The authority of the local department to investigate valid complaints of alleged child abuse or neglect in facilities or foster homes overlaps with the authority of the public agencies that have regulatory responsibilities for these facilities to investigate alleged violations of standards.

1. For valid complaints, the local department shall contact the appropriate regulatory authority and share the complaint information. The regulatory authority will appoint a staff person to participate in the investigation to determine if there are regulatory concerns.

2. The assigned child protective services (CPS) worker 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 the CPS worker and regulatory authority as well as the impact the investigation will have on the facility's staff, the victim child, and the other children at the facility.

Statutory Authority

§ 63.2-217 of the Code of Virginia.

Historical Notes

Derived from VR615-45-5 § 2.3, eff. January 26, 1994; amended, Virginia Register Volume 19, Issue 3, eff. November 20, 2002; Volume 30, Issue 6, eff. January 1, 2014; Volume 35, Issue 23, eff. August 23, 2019.

22VAC40-730-50. Involvement of other parties.

A. In a facility for which there is not a state regulatory authority, such as in schools, the CPS worker shall ask the facility administrator or school superintendent to designate a person to participate in the joint investigative process.

B. When CPS and law enforcement will be conducting a joint investigation, the CPS worker shall attempt to facilitate a coordinated approach among CPS, law enforcement and the regulatory authority or facility designee.

Statutory Authority

§§ 63.2-217, 63.2-1502 and 63.2-1503 of the Code of Virginia.

Historical Notes

Derived from VR615-45-5 § 2.4, eff. January 26, 1994; amended, Virginia Register Volume 19, Issue 3, eff. November 20, 2002.

22VAC40-730-60. Contact with CPS regional coordinator.

A. The local department shall contact the department's regional CPS coordinator as soon as is practical after the receipt of the valid complaint. The regional coordinator will review the procedures to be used in investigating the valid complaint and provide any case planning assistance the local worker may need.

B. The regional coordinator shall be responsible for monitoring the investigative process and shall be kept informed of developments which substantially change the original case plan.

C. At the conclusion of the investigation the local department shall contact the department's regional CPS coordinator to review the case prior to notifying anyone of the disposition. The regional coordinator shall review the facts gathered and policy requirements for determining whether or not abuse or neglect occurred. However, the statutory authority for the disposition rests with the local department. This review shall not interfere with the requirement to complete the investigation in the legislatively mandated time frame.

Statutory Authority

§ 63.2-217 of the Code of Virginia.

Historical Notes

Derived from VR615-45-5 § 2.5, eff. January 26, 1994; amended, Virginia Register Volume 19, Issue 3, eff. November 20, 2002; Volume 30, Issue 6, eff. January 1, 2014.

22VAC40-730-70. Contact with the facility administrator.

A. The 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, 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.

Statutory Authority

§ 63.2-217 of the Code of Virginia.

Historical Notes

Derived from VR615-45-5 § 2.6, eff. January 26, 1994; amended, Virginia Register Volume 19, Issue 3, eff. November 20, 2002; Volume 30, Issue 6, eff. January 1, 2014; Volume 35, Issue 23, eff. August 23, 2019.

22VAC40-730-80. Contact with the alleged victim child.

The CPS worker shall interview the alleged victim child and shall determine along with a regulatory staff person or facility administrator or designee who may be present in the interview. Where there is an apparent conflict of interest, the local department shall use discretion regarding who is to be included in the interview.

Statutory Authority

§ 63.2-217 of the Code of Virginia.

Historical Notes

Derived from VR615-45-5 § 2.7, eff. January 26, 1994; amended, Virginia Register Volume 19, Issue 3, eff. November 20, 2002; Volume 30, Issue 6, eff. January 1, 2014.

22VAC40-730-90. Contact with the alleged abuser or neglector.

A. The CPS worker shall interview the alleged abuser or neglector according to a plan developed with the regulatory staff person, facility administrator, or designee. Where there is an apparent conflict of interest, the local department shall use discretion regarding who is to be included in the interview. At the onset of the initial interview with the alleged abuser or neglector, the CPS worker shall notify him in writing of the general nature of the valid complaint and the identity of the alleged victim child to avoid any confusion regarding the purpose of the contacts.

B. The alleged abuser or neglector has the right to involve a representative of his choice to be present during his interviews.

Statutory Authority

§ 63.2-217 of the Code of Virginia.

Historical Notes

Derived from VR615-45-5 § 2.8, eff. January 26, 1994; amended, Virginia Register Volume 19, Issue 3, eff. November 20, 2002; Volume 30, Issue 6, eff. January 1, 2014.

22VAC40-730-100. Contact with collateral children.

The CPS worker shall interview nonvictim children as collaterals if it is determined that they may have information which would help in determining the finding in the valid complaint. Such contact should be made with prior consent of the nonvictim child's parent, guardian or agency holding custody. If the situation warrants contact with the nonvictim child prior to such consent being obtained, the parent, guardian or agency holding custody should be informed as soon as possible after the interview takes place.

Statutory Authority

§ 63.2-217 of the Code of Virginia.

Historical Notes

Derived from VR615-45-5 § 2.9, eff. January 26, 1994; amended, Virginia Register Volume 30, Issue 6, eff. January 1, 2014.

22VAC40-730-110. Report the findings.

Written notification of the findings shall be submitted to the facility administrator or designee and the regulatory staff person involved in the investigation, if applicable, at the same time the alleged abuser or neglector is notified.

If the facility administrator is the abuser or neglector, written notification of the findings shall be submitted to his superior if applicable.

Statutory Authority

§ 63.2-217 of the Code of Virginia.

Historical Notes

Derived from VR615-45-5 § 2.10, eff. January 26, 1994; amended, Virginia Register Volume 30, Issue 6, eff. January 1, 2014.

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 regulations.

1. 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. 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.

Statutory Authority

§ 63.2-217 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 20, Issue 5, eff. January 1, 2004; amended, Virginia Register Volume 22, Issue 2, eff. November 2, 2005; Volume 22, Issue 9, eff. February 8, 2006; Volume 30, Issue 6, eff. January 1, 2014; Volume 35, Issue 23, eff. August 23, 2019.

22VAC40-730-120. (Repealed.)

Historical Notes

Derived from VR615-45-5 § 2.11, eff. January 26, 1994; repealed, Virginia Register Volume 35, Issue 23, eff. August 23, 2019.

22VAC40-730-130. Requirements.

A. In order to be determined qualified to conduct investigations in out of family settings, local child protective services (CPS) workers shall meet minimum education standards established by the department including completion of an out of family 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.

Statutory Authority

§ 63.2-217 of the Code of Virginia.

Historical Notes

Derived from VR615-45-5 § 2.12, eff. January 26, 1994; amended, Virginia Register Volume 30, Issue 6, eff. January 1, 2014; Volume 35, Issue 23, eff. August 23, 2019.

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.

Statutory Authority

§ 63.2-217 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 35, Issue 23, eff. August 23, 2019.



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