Bill Text: VA HB1207 | 2018 | Regular Session | Prefiled
Bill Title: Investigative and enforcement proceedings; information provided to individuals or business entities.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced - Dead) 2018-02-13 - Left in Health, Welfare and Institutions [HB1207 Detail]
Download: Virginia-2018-HB1207-Prefiled.html
Be it enacted by the General Assembly of Virginia:
1. That §§63.2-104, 63.2-105, 63.2-1526, and 63.2-1729 of the Code of Virginia are amended and reenacted as follows:
§63.2-104. Confidential records and information concerning social services; penalty.
A. The records, information and statistical registries of the Department, local departments and of all child-welfare agencies concerning social services to or on behalf of individuals shall be confidential information, provided that the Commissioner, the Board and their agents shall have access to such records, information and statistical registries, and that such records, information and statistical registries may be disclosed to any person having a legitimate interest in accordance with state and federal law and regulation. Notwithstanding any other provision of law to the contrary, an individual or business entity who is the subject of an investigation or administrative action by the Department or a local department shall be considered a person having a legitimate interest in the records of the Department or local department.
It shall be unlawful for any officer, agent or employee of any child-welfare agency; for the Commissioner, the State Board or their agents or employees; for any person who has held any such position; and for any other person to whom any such record or information is disclosed to disclose, directly or indirectly, any such confidential record or information, except as herein provided or pursuant to §63.2-105. Every violation of this section shall constitute a Class 1 misdemeanor.
B. If a request for a record or information concerning applicants for and recipients of social services is made to the Department or a local department by a person who does not have a legitimate interest, the Commissioner or local director shall not provide the record or information unless permitted by state or federal law or regulation.
C. This section shall not apply to the disposition of adoption records, reports and information that is governed by the provisions of § 63.2-1246.
§63.2-105. Confidential records and information concerning social services; child-protective services and child-placing agencies.
A. The local department may disclose the contents of records
and information learned during the course of a child-protective services
investigation or during the provision of child-protective services to a family,
without a court order and without the consent of the family, to a person having
a legitimate interest when in the judgment of the local department such
disclosure is in the best interest of the child who is the subject of the
records. Persons having a legitimate interest in child-protective services
records of local departments include, but are not limited to, (i) any
person who is responsible for investigating a report of known or suspected
abuse or neglect or for providing services to a child or family that is the
subject of a report, including multidisciplinary teams and family assessment
and planning teams referenced in subsections J and K of §63.2-1503,
law-enforcement agencies and attorneys for the Commonwealth; (ii) child welfare
or human services agencies of the Commonwealth or its political subdivisions
when those agencies request information to determine the compliance of any
person with a child-protective services plan or an order of any court; (iii)
personnel of the school or child day program as defined in §63.2-100 attended
by the child so that the local department can receive information from such
personnel on an ongoing basis concerning the child's health and behavior, and
the activities of the child's custodian; (iv) an individual or
business entity who is the subject of an investigation or
administrative action by a local department with regard to child-protective
services records of such local department, (v) a parent, grandparent, or any other person when such
parent, grandparent or other person would be considered by the local department
as a potential caretaker of the child in the event the local department has to
remove the child from his custodian; and (v) (vi) the Commitment Review Committee and the Office of the
Attorney General for the purposes of sexually violent predator civil
commitments pursuant to Chapter 9 (§37.2-900 et seq.) of Title 37.2.
Whenever a local department exercises its discretion to release otherwise confidential information to any person who meets one or more of these descriptions, the local department shall be presumed to have exercised its discretion in a reasonable and lawful manner.
B. Any person who has not been legally adopted in accordance with the provisions of this title and who was a child for whom all parental rights and responsibilities have been terminated, shall not have access to any information from a child-placing agency with respect to the identity of the biological family, except (i) upon application of the child who is 18 or more years of age, (ii) upon order of a circuit court entered upon good cause shown, and (iii) after notice to and opportunity for hearing by the applicant for such order and the child-placing agency or local board that had custody of the child.
An eligible person who is a resident of Virginia may apply for the court order provided for herein to (a) the circuit court of the county or city where the person resides or (b) the circuit court of the county or city where the principal office of the child-placing agency or local board that controls the information sought by the person is located. An eligible person who is not a resident of Virginia shall apply for such a court order to the circuit court of the county or city where the principal office of the child-placing agency or local board that controls the information sought by the person is located.
If the identity and whereabouts of the biological family are known to the agency or local board, the court may require the agency or local board to advise the biological parents of the pendency of the application for such order. In determining good cause for the disclosure of such information, the court shall consider the relative effects of such action upon the applicant for such order and upon the biological parents.
§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, including unredacted copies
of notes and reports relating to the investigation and the names of the
reporter and collateral witnesses. The local
department may withhold from disclosure (i) the reporter's name or
information which may endanger the well-being of a child shall not be released.
The, (ii) the identity of a collateral witness or, (iii) the identity of
any other person providing information, or (iv) any
other information connected to the investigation shall not be released if disclosure may endanger
his life or safety only if the local
department has made a specific determination that the disclosure of the name,
identity, or
information would endanger the well-being of a child or the
life or safety of the reporter, a collateral witness, or any other person
providing information. Information prohibited from being
disclosed by state or federal law or regulation shall not be released. The local department's decision
to withhold the name, identity, or other
information pursuant to this section may be appealed to the circuit
court. The venue shall be as specified
in subdivision 1 of §8.01-261. The local department shall have the burden of
proving by clear and convincing evidence that the disclosure of
the name, identity, or other information would endanger the
well-being of a child or the life or safety of the reporter, a collateral
witness, or any other person providing
information. The court may
conduct in camera review as appropriate.
The local department shall hold an informal conference or
consultation where such the person suspected of
or found to have committed abuse or neglect, 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 receive a copy of all
information the Board intends to rely upon, in whole or in part, at the hearing; and (iii) 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 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 is also filed 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 court is completed. 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 court has been completed, 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.
§63.2-1729. Confidentiality of complainant's identity.
Whenever the Department conducts inspections and
investigations in response to complaints received from the public, the identity
of the complainant and the identity of any resident, participant or child who
is the subject of the complaint, or identified therein, shall be confidential
and shall not be open to inspection by members of the public. Identities of the
complainant and resident, participant or child who is the subject of the
complaint shall be revealed only if a court order so requires. Nothing
contained herein shall prevent the Department, in its discretion, from
disclosing to the assisted living facility, adult day care center or child
welfare agency the nature of the complaint or the identity of the resident,
participant or child who is the subject of the complaint. Nothing contained
herein shall prevent the Department or its employees from making reports under
Chapter 15 (§63.2-1500 et seq.) of this title
or Article 2 (§63.2-1603 et seq.) of Chapter 16 of this
title. If Notwithstanding any other
provision of law to the contrary, if the
Department intends to rely, in whole or in part, on any statements made by the
complainant, at any administrative hearing brought against the assisted living
facility, adult day care center or child welfare agency, the Department shall
disclose the identity of the complainant to the assisted living facility, adult
day care center or child welfare agency a reasonable time in advance of such
hearing.
