Bill Text: VA HB1953 | 2019 | Regular Session | Chaptered
Bill Title: Child abuse or neglect; appeals from founded complaints, concurrent criminal investigations.
Spectrum: Bipartisan Bill
Status: (Passed) 2019-02-13 - Governor: Acts of Assembly Chapter text (CHAP0012) [HB1953 Detail]
Download: Virginia-2019-HB1953-Chaptered.html
Be it enacted by the General Assembly of Virginia:
1. That §63.2-1526 of the Code of Virginia is amended and reenacted as follows:
§63.2-1526. Appeals of certain actions of local departments.
A. A person who is suspected of or is found to have committed
abuse or neglect may, within thirty 30 days of being notified of
that determination, request the local department rendering such determination
to amend the determination and the local department's related records. Upon
written request, the local department shall provide the appellant all information
used in making its determination. Disclosure of the reporter's name or
information which may endanger the well-being of a child shall not be released.
The identity of a collateral witness or any other person shall not be released
if disclosure may endanger his life or safety. Information prohibited from
being disclosed by state or federal law or regulation shall not be released.
The local department shall hold an informal conference or consultation where
such person, who may be represented by counsel, shall be entitled to informally
present testimony of witnesses, documents, factual data, arguments or other
submissions of proof to the local department. With the exception of the local
director, no person whose regular duties include substantial involvement with
child abuse and neglect cases shall preside over the informal conference. If
the local department refuses the request for amendment or fails to act within
forty-five 45 days after receiving such request, the person may,
within thirty 30 days thereafter, petition the Commissioner, who
shall grant a hearing to determine whether it appears, by a preponderance of
the evidence, that the determination or record contains information which is
irrelevant or inaccurate regarding the commission of abuse or neglect by the
person who is the subject of the determination or record and therefore shall be
amended. A person who is the subject of a report who requests an amendment to
the record, as provided above, has the right to obtain an extension for an
additional specified period of up to sixty 60 days by requesting
in writing that the forty-five 45 days in which the local
department must act be extended. The extension period, which may be up to
sixty 60 days, shall begin at the end of the forty-five 45
days in which the local department must act. When there is an extension period,
the thirty-day 30-day period to request an administrative hearing
shall begin on the termination of the extension period.
B. The Commissioner shall designate and authorize one or more
members of his staff to conduct such hearings. The decision of any staff member
so designated and authorized shall have the same force and effect as if the
Commissioner had made the decision. The hearing officer shall have the
authority to issue subpoenas for the production of documents and the appearance
of witnesses. The hearing officer is authorized to determine the number of
depositions that will be allowed and to administer oaths or affirmations to all
parties and witnesses who plan to testify at the hearing. The Board shall adopt
regulations necessary for the conduct of such hearings. Such regulations shall
include provisions stating that the person who is the subject of the report has
the right (i) to submit oral or written testimony or documents in support of
himself and (ii) to be informed of the procedure by which information will be
made available or withheld from him. In case of any information withheld, such
person shall be advised of the general nature of such information and the
reasons, for reasons of privacy or otherwise, that it is being withheld. Upon
giving reasonable notice, either party at his own expense may depose a nonparty
and submit such deposition at the hearing pursuant to Board regulation. Upon
good cause shown, after a party's written motion, the hearing officer may issue
subpoenas for the production of documents or to compel the attendance of
witnesses at the hearing, except that alleged child victims of the person and
their siblings shall not be subpoenaed, deposed or required to testify. The
person who is the subject of the report may be represented by counsel at the
hearing. Upon petition, the court shall have the power to enforce any subpoena
that is not complied with or to review any refusal to issue a subpoena. Such
decisions may not be further appealed except as part of a final decision that
is subject to judicial review. Such hearing officers are empowered to order the
amendment of such determination or records as is required to make them accurate
and consistent with the requirements of this chapter or the regulations adopted
hereunder. If, after hearing the facts of the case, the hearing officer
determines that the person who is the subject of the report has presented
information that was not available to the local department at the time of the
local conference and which if available may have resulted in a different
determination by the local department, he may remand the case to the local
department for reconsideration. The local department shall have fourteen
14 days in which to reconsider the case. If, at the expiration of
fourteen 14 days, the local department fails to act or fails to
amend the record to the satisfaction of the appellant, the case shall be
returned to the hearing officer for a determination. If aggrieved by the
decision of the hearing officer, such person may obtain further review of the
decision in accordance with Article 5 (§2.2-4025 et seq.) of the
Administrative Process Act (§2.2-4000 et seq.).
C. Whenever an appeal of the local department's finding is
made and a criminal charge or investigation is also filed or
commenced against the appellant for the same conduct involving the same
victim as investigated by the local department, the appeal process shall
automatically be stayed until the criminal prosecution in circuit the
trial court is completed, until the criminal investigation is closed,
or, in the case of a criminal investigation that is not completed within 180
days of the appellant's request for an appeal of the local department's
finding, for 180 days after the appellant's request for appeal. During such
stay, the appellant's right of access to the records of the local department
regarding the matter being appealed shall also be stayed. Once the criminal
prosecution in circuit the trial court has been completed, the
criminal investigation is closed, or, in the case of a criminal investigation
that is not completed within 180 days of the appellant's request for an appeal
of the local department's finding, 180 days have passed, the local
department shall advise the appellant in writing of his right to resume his
appeal within the time frames provided by law and regulation.