Virginia Law

Part VIII. Sanctions

8VAC20-820-320. Violation of standards or statutes.

A. The Superintendent of the Department of Education may impose such sanctions or take such actions as are appropriate for violation of any of the standards or statutes or for abuse or neglect of persons in care.

B. The following reasons may be considered by the department for the imposition of administrative sanctions:

1. Failure to demonstrate or maintain compliance with applicable standards or for violations of the provisions of the Code of Virginia;

2. Permitting, aiding, or abetting the commission of any illegal act in the licensed facility or agency;

3. Engaging in conduct or practices that are in violation of statutes and standards relating to abuse, neglect, or exploitation of children; or

4. Deviating significantly from the program or services for which a license was issued without obtaining prior written approval from the department, or failure to correct such deviations within a specified time.

Statutory Authority

§§ 22.1-16 and 22.1-289.046 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 37, Issue 24, eff. July 1, 2021.

8VAC20-820-330. Administrative sanctions.

The superintendent may impose administrative sanctions or initiate court proceedings, severally or jointly, when appropriate in order to ensure prompt correction of violations involving noncompliance with state law or regulation child day programs and family day systems as discovered through any inspection or investigation conducted by the Department of Education, the Virginia Department of Health, the Virginia Department of Behavioral Health and Developmental Services, or by state and local building or fire prevention officials. These administrative sanctions include:

1. Revoking or denying renewal of a license for any child day program or family day system that fails to comply with the limitations and standards set forth in its license;

2. Issuing a notice of summary suspension of the license to operate a child day program or family day system pursuant to proceedings set forth in § 22.1-289.022 C of the Code of Virginia or pursuant to proceedings set forth in § 22.1-289.024 of the Code of Virginia for child day programs or family day systems operated by an agency of the Commonwealth in conjunction with any proceedings for revocation, denial, or other action, when conditions or practices exist in the child day program or family day system that pose an immediate and substantial threat to the health, safety, and welfare of children receiving care; and

3. Imposing administrative sanctions through the issuance of a special order as provided in § 22.1-289.023 of the Code of Virginia. These include:

a. Placing a licensee on probation upon finding that the licensee is substantially out of compliance with the terms of the license and that the health and safety of children is at risk;

b. Reducing the licensed capacity or prohibiting new admissions when the superintendent has determined that the licensee cannot make necessary corrections to achieve compliance with the regulations except by a temporary restriction of its scope of service;

c. Mandating training for the licensee or licensee's employees, with any costs to be borne by the licensee, when the superintendent has determined that the lack of such training has led directly to violations of regulations;

d. Assessing civil penalties of not more than $500 per inspection upon finding that the licensee of a child day program or family day system is substantially out of compliance with the terms of its license and the health and safety of children is at risk;

e. Requiring licensees to contact parents, guardians, or other responsible persons in writing regarding health and safety violations; and

f. Preventing licensees who are substantially out of compliance with the licensure terms or in violation of the regulations from receiving public funds.

Statutory Authority

§§ 22.1-16 and 22.1-289.046 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 37, Issue 24, eff. July 1, 2021.

8VAC20-820-340. Summary suspension procedures.

A. In conjunction with any proceeding for revocation, denial, or other action when conditions or practices exist that pose an immediate and substantial threat to the health, safety, and welfare of children, the Superintendent may issue a notice of summary suspension of the license to operate a child day program or family day system or of certain authority of the licensee to provide certain services or perform certain functions.

B. The hearing coordinator will select a hearing officer from a list prepared by the Executive Secretary of the Supreme Court of Virginia and will schedule the time, date, and location of the hearing to determine whether the suspension is appropriate as required by § 22.1-289.022 C or 22.1-289.024 C of the Code of Virginia.

C. Simultaneously with the issuance of a notice of revocation, denial, or other action, the superintendent will issue to the licensee a notice of summary suspension setting forth the following:

1. The procedures for the summary suspension;

2. The hearing and appeal rights as set forth in this subsection;

3. Facts and evidence that formed the basis for which the summary order of suspension is sought; and

4. The time, date, and location of the hearing.

D. Notice of the summary suspension shall be served on the licensee or the licensee's designee by personal service or by certified mail, return receipt requested, to the address of record of the licensee as soon as practicable after issuance thereof.

E. The hearing shall take place in the locality where the child day program or family day system operates unless the licensee or the licensee's designee expressly waives this venue provision.

1. The hearing shall be held no later than 15 business days after service of notice on the licensee. The hearing officer may grant a continuance upon written request and for good cause shown. In no event shall any continuance exceed 10 business days after the initial hearing date.

2. The hearing coordinator will forward a copy of the relevant licensing standards to the hearing officer.

3. The hearing will be conducted in accordance with the procedures set forth in 8VAC20-820-460, 8VAC20-820-470, and 8VAC20-820-480.

4. The department may be represented either by counsel or by agency staff authorized by § 2.2-509 of the Code of Virginia.

F. Within 10 days of the conclusion of the hearing, the hearing officer shall provide to the superintendent written findings and conclusions, together with a recommendation as to whether the license should be summarily suspended. The department shall have the burden of proof in any summary suspension hearing. The decision of the hearing officer shall be based on the preponderance of the evidence presented by the record and relevant to the basic law under which the agency is operating.

G. Within 10 business days of receipt of the hearing officer's findings, conclusions, and recommendation, the superintendent may issue a final order of summary suspension or an order that such summary suspension is not warranted by the facts and circumstances presented.

H. In issuing a final order of summary suspension, the superintendent may:

1. Suspend the license of the child day program or family day system; or

2. Suspend only certain authority of the child day program or family day system to provide certain services or perform certain functions that the Superintendent determines should be restricted or modified in order to protect the health, safety, and welfare of the children receiving care.

I. The superintendent shall adopt the hearing officer's recommended decision unless to do so would be an error of law or department policy.

J. In the event the superintendent rejects a hearing officer's findings, conclusions, or recommended decision, the superintendent shall state with particularity the basis for rejection.

K. A copy of any final order of summary suspension shall be prominently displayed at each public entrance of the facility as required in 8VAC20-820-120.

L. The signed, original case decision shall remain in the custody of the agency as a public record, subject to the agency's records retention policy.

Statutory Authority

§§ 22.1-16 and 22.1-289.046 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 37, Issue 24, eff. July 1, 2021.

8VAC20-820-350. Appeal process.

A. The applicant or licensee will receive a notice of the department's intent to impose an administrative sanction. This notice will describe the sanctions and the reasons for the imposition. Service of the notice of adverse action is achieved by certified mailing of the notice to the applicant or licensee, unless service is made by other means and acknowledged by the applicant or licensee. If the applicant or licensee wishes to appeal the notice of adverse action, he shall have 15 days after receipt of the notice to note his appeal.

B. Upon receipt of the notice to impose an administrative sanction, the applicant or licensee has the right to appeal the decision in accordance with the Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia). The procedures for filing an appeal will be outlined in the notice. The applicant or licensee shall submit any appeal of imposition of an administrative sanction in writing within 15 days of receipt of the notice.

C. If the applicant or licensee fails to appeal the notice of adverse action within 15 days of receipt of the notice, the final order will be entered. The decision will take effect 30 days after receipt of the notice.

D. The appeal process available is governed by law. Where the sanction is imposed by means of a special order as provided in § 22.1-289.023 of the Code of Virginia, the case decision is issued by the superintendent following findings and conclusions resulting from the informal conference. Other sanctions include a provision for an administrative hearing, which is described in § 2.2-4020 of the Code of Virginia, prior to the issuance of the case decision. For ease of reference, the process steps are displayed in the following chart:

E. A final order of summary suspension for a child day program or family day system not operated by an agency of the Commonwealth shall include notice that the licensee may appeal the superintendent's decision to the appropriate circuit court no later than 10 days following service of the order.

1. The sole issue before the court shall be whether the superintendent had reasonable grounds to require the licensee to cease operations during the pendency of the concurrent revocation, denial, or other proceedings.

2. The concurrent revocation, denial, or other proceedings shall not be affected by the outcome of any hearing on the appropriateness of the summary suspension.

Statutory Authority

§§ 22.1-16 and 22.1-289.046 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 37, Issue 24, eff. July 1, 2021.