Administrative Code

Virginia Administrative Code
1/25/2022

Part I. Definitions and General Provisions

6VAC35-20-10. Definitions.

The following words and terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise:

"Appeal of a finding of noncompliance" means the action taken by a facility or program administrator after a certification audit when there is disagreement with a finding of noncompliance with an individual regulatory requirement.

"Audit team leader" means the person designated by the director or designee to organize and facilitate the certification audit or the audit of a VJCCCA program or office on youth.

"Board" means the Virginia Board of Juvenile Justice.

"Certification" or "certified" means the formal finding that a program or facility is approved to operate for a specific period of time as provided for in 6VAC35-20-100.

"Certification action" means the department's decision to issue or deny certification or to decertify a program or facility as provided for in 6VAC35-20-100 or the board's decision to take action pursuant to 6VAC35-20-115.

"Certification audit" means the process by which designated personnel assess a program's or facility's compliance with applicable regulatory requirements, which includes an on-site visit, the results of which are reported in a certification audit report for certification action as provided for in 6VAC35-20-100. All facilities and court service units regulated by the board shall be subject to certification audits.

"Certification audit report" means the official report of certification audit findings prepared by the audit team leader as provided for in 6VAC35-20-90.

"Certification status" means the type of certification issued to a program or facility, which includes the period of time specified in the certificate, during which the program or facility is approved to operate and must maintain compliance with its regulatory requirements and any corrective action plan.

"Compliance" means meeting the requirements of a standard or an applicable board policy.

"Compliance documentation" means specific documents or information including records, reports, observations, and verbal responses to establish or confirm compliance with a regulatory requirement by a program or facility.

"Conditional certification" means a temporary certification status issued to a new or newly opened facility as provided for in 6VAC35-20-100.

"Corrective action plan" means a written document that, in accordance with 6VAC35-20-91, states what has been or will be done to bring all deficiencies into compliance with regulatory requirements.

"Critical regulatory requirements" means those regulatory requirements for programs or facilities, as defined by the board, that must be maintained at 100% compliance. Critical regulatory requirements were previously termed "mandatory standards."

"Decertified" means a status imposed in accordance with 6VAC35-20-120 when it is determined that a program or facility has not met an acceptable percentage of compliance with its regulatory requirements as provided for in 6VAC35-20-85.

"Deficiency" and "noncompliance" means that the program or facility (i) does not meet or has not demonstrated that it meets regulatory requirements or (ii) does not comply with the Virginia Juvenile Community Crime Control Act local plan approved by the board.

"Department" means the Virginia Department of Juvenile Justice.

"Director" means the Director of the Department of Juvenile Justice.

"Health, welfare, or safety violation" means any action or omission that causes an immediate and substantial threat to the health, welfare, or safety of the juveniles or staff in juvenile residential facilities.

"Juvenile residential facility" or "facility" means a publicly or privately operated facility or placement where 24 hour-per-day care is provided to residents who are separated from their legal guardians and that is certified pursuant to this chapter. As used in this regulation, the term includes juvenile group homes and halfway houses, juvenile secure detention centers, and juvenile correctional centers.

"Monitoring review" means a review by designated department personnel assessing the program's or facility's compliance with regulatory requirements. A monitoring review may be conducted via electronic means and does not require on-site examination of the program or facility. A monitoring review may be done in conjunction with a program's or facility's self-audit, which is provided for in 6VAC35-20-61.

"Monitoring visit" means an on-site evaluation and inspection by designated personnel to assess a program's or facility's compliance with regulatory requirements.

"Newly opened facility" means (i) a facility that is newly constructed or (ii) an existing facility that is being placed in service as a juvenile residential facility.

"Office on Youth" means nonresidential programs funded via the Virginia Delinquency Prevention and Youth Development Act (Chapter 3 (§ 66-26 et seq.) of Title 66 of the Code of Virginia).

"Preliminary summary suspension order" means an order issued by the director as provided in 6VAC35-20-37 taking immediate action against a program or facility when there is a known substantial health, welfare, or safety threat. This order is issued summarily prior to review by the board and is subject to due process protections after issuance.

"Probationary certification" means the temporary status granted to a program or facility to provide a period of time in which to demonstrate compliance with regulatory requirements.

"Program" means a court service unit or a nonresidential service subject to applicable regulatory requirements. For the purpose of this regulation, VJCCCA programs and offices on youth are not included in this definition.

"Program or facility administrator" means the individual responsible for the operations of a program or facility subject to regulatory requirements.

"Regulatory requirement" means a provision of a regulation promulgated by the board to which a program or facility must adhere. A section, subsection, or subdivision of a regulation may include multiple regulatory requirements as provided for in 6VAC35-20-85.

"Status report" means a report that summarizes a review of the areas on which there was a finding of noncompliance and states the program's or facility's compliance standing indicated through the review. For a status report, the regulatory requirements are monitored at the same level of compliance as assessed in the certification audit.

"Summary suspension order" means an order issued by the director in accordance with § 66-24 of the Code of Virginia and 6VAC35-20-37 temporarily suspending a program's or facility's certification.

"Variance" means a board action that relieves a program or facility from having to meet a specific regulatory requirement or develop a corrective action plan for that regulatory requirement for a determined period of time.

"VJCCCA program" means a nonresidential program established under the Virginia Juvenile Community Crime Control Act (Article 12.1 (§ 16.1-309.2 et seq.) of Chapter 11 of Title 16.1 of the Code of Virginia).

"VJCCCA program or office on youth audit" means the on-site visit by designated department personnel to assess a program funded through the Virginia Juvenile Community Crime Control Act (Article 12.1 (§ 16.1-309.2 et seq.) of Chapter 11 of Title 16.1 of the Code of Virginia) or the Virginia Delinquency Prevention and Youth Development Act (Chapter 3 (§ 66-26 et seq.) of Title 66 of the Code of Virginia) for compliance with the regulatory requirements as provided for in 6VAC35-150 (Regulation for Nonresidential Services) and 6VAC35-60 (Minimum Standards for Virginia Delinquency Prevention and Youth Development Act Grant Programs), as applicable.

"VJCCCA program or office on youth audit report" means an official report of a VJCCCA program or office on youth audit.

"Waiver" means a formal statement from the department temporarily excusing a program or facility from meeting a noncritical regulatory requirement pending board action on a formal variance request.

"Written" means the required information is communicated in writing. Such writing may be available in either hard copy or electronic form.

Statutory Authority

§§ 16.1-233 and 66-10 of the Code of Virginia.

Historical Notes

Derived from VR690-10-001 § 1.1, eff. September 9, 1992; amended, Virginia Register Volume 19, Issue 23, eff. September 1, 2003; Volume 29, Issue 26, eff. September 25, 2013.

6VAC35-20-20. (Repealed.)

Historical Notes

Derived from VR690-10-001 § 1.2, eff. September 9, 1992; repealed, Virginia Register Volume 19, Issue 23, eff. September 1, 2003.

6VAC35-20-30. Purpose.

This regulation prescribes how, in accordance with §§ 16.1-234, 16.1-249, 16.1-309.9, 16.1-309.10, 16.1-349, 66-10, 66-24, and 66-25.1:3 of the Code of Virginia, (i) the department will monitor and audit juvenile residential facilities, programs, VJCCCA programs, and offices on youth; (ii) the department will certify residential facilities and state-operated and local court service units that are part of the Commonwealth's juvenile justice system; and (iii) the board will review certification audit reports of programs and facilities found in noncompliance with applicable regulatory requirements.

Statutory Authority

§§ 16.1-233 and 66-10 of the Code of Virginia.

Historical Notes

Derived from VR690-10-001 § 2.1, eff. September 9, 1992; amended, Virginia Register Volume 19, Issue 23, eff. September 1, 2003; Volume 29, Issue 26, eff. September 25, 2013.

6VAC35-20-35. Guidance documents.

To help programs and facilities meet all regulatory requirements, the department shall prepare guidance documents compiling all regulatory requirements applicable to each type of program or facility subject to this chapter and stating how compliance will be assessed. The guidance documents shall serve as the basis for monitoring visits, monitoring reviews, certification audits, and VJCCCA program or offices on youth audits. The guidance documents shall be posted on the department's website at http://www.djj.virginia.gov.

Statutory Authority

§§ 16.1-233 and 66-10 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 19, Issue 23, eff. September 1, 2003; amended, Virginia Register Volume 29, Issue 26, eff. September 25, 2013.

6VAC35-20-36. Program or facility relationship to regulatory authority.

A. The program or facility shall submit or make available to the audit team leader such reports and information required to establish compliance with applicable regulatory requirements. Documentation supporting compliance with regulatory requirements shall be retained by the program or facility from the date of the previous certification audit or VJCCCA program or office on youth audit.

B. The program or facility administrator shall notify the director or designee within five business days of any significant change in administrative structure or newly hired chief administrative officer or program or facility administrator or director.

C. The program or facility administrator shall, in accordance with the process established by the department, notify the director or designee of the following:

1. Any serious incidents affecting the health, welfare, or safety of citizens, individuals under the supervision of the department, or staff;

2. Lawsuits against or settlements relating to the health, welfare, safety, or human rights of residents; and

3. Any criminal charges or reports of suspected child abuse or neglect against staff relating to the health, welfare, safety, or human rights of residents.

Statutory Authority

§§ 16.1-233 and 66-10 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 29, Issue 26, eff. September 25, 2013.

6VAC35-20-36.1. Department response to reports of health, welfare, or safety violations.

Whenever the department becomes aware of a health, welfare, or safety violation, the department shall take immediate action to correct the situation if not already done by the program or facility. The department's actions may include, but are not limited to, the following:

1. Reporting the situation to child protective services, the Virginia State Police or the law-enforcement agency with jurisdiction, or other enforcement authorities, as applicable and appropriate; or

2. Taking any action authorized in 6VAC35-20-37 for violations in a juvenile residential facility.

3. Reporting to the board no later than its next regularly scheduled meeting (i) the nature and scope of the health, welfare, or safety violation and (ii) the action taken by the department or the program or facility to correct the violation.

Statutory Authority

§§ 16.1-233 and 66-10 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 29, Issue 26, eff. September 25, 2013.

6VAC35-20-37. Director's authority to take immediate administrative action.

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.

Statutory Authority

§§ 16.1-233 and 66-10 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 19, Issue 23, eff. September 1, 2003; amended, Virginia Register Volume 25, Issue 4, eff. December 12, 2008; Volume 29, Issue 26, eff. September 25, 2013.

6VAC35-20-40. (Repealed.)

Historical Notes

Derived from VR690-10-001 § 2.2, eff. September 9, 1992; repealed, Virginia Register Volume 19, Issue 23, eff. September 1, 2003.

Website addresses provided in the Virginia Administrative Code to documents incorporated by reference are for the reader's convenience only, may not necessarily be active or current, and should not be relied upon. To ensure the information incorporated by reference is accurate, the reader is encouraged to use the source document described in the regulation.

As a service to the public, the Virginia Administrative Code is provided online by the Virginia General Assembly. We are unable to answer legal questions or respond to requests for legal advice, including application of law to specific fact. To understand and protect your legal rights, you should consult an attorney.