22 Va. Admin. Code § 40-705-40

Current through Register Vol. 40, No. 19, May 6, 2024

Section 22VAC40-705-40 - Complaints and reports of suspected child abuse or neglect

A. Persons who are mandated to report are those individuals defined in § 63.2-1509 of the Code of Virginia.

1. Mandated reporters shall report immediately any suspected abuse or neglect that they learn of in their professional or official capacity unless the person has actual knowledge that the same matter has already been reported to the local department or the department's toll-free child abuse and neglect hotline.

2. Pursuant to § 63.2-1509 of the Code of Virginia, if information is received by a teacher, staff member, resident, intern, or nurse in the course of his professional services in a hospital, school, or other similar institution, such person may make reports of suspected abuse or neglect immediately to the person in charge of the institution or department, or his designee, who shall then make such report forthwith. If the initial report of suspected abuse or neglect is made to the person in charge of the institution or department, or his designee, such person shall (i) notify the teacher, staff member, resident, intern, or nurse who made the initial report when the report of suspected child abuse or neglect is made to the local department or to the department's toll-free child abuse and neglect hotline; (ii) provide the name of the individual receiving the report; and (iii) forward any communication resulting from the report, including any information about any actions taken regarding the report, to the person who made the initial report.

3. Mandated reporters shall disclose all information that is the basis for the suspicion of child abuse or neglect and shall make available, upon request, to the local department any records and reports that document the basis for the complaint or report.

4. Pursuant to § 63.2-1509D of the Code of Virginia, a mandated reporter's failure to report as soon as possible, but no longer than 24 hours after having reason to suspect a reportable offense of child abuse or neglect, shall result in a fine.

5. In cases evidencing acts of rape, sodomy, or object sexual penetration as defined in Article 7 (§ 18.2-61 et seq.) of Chapter 4 of Title 18.2 of the Code of Virginia, a person who knowingly and intentionally fails to make the report required pursuant to § 63.2-1509 of the Code of Virginia shall be guilty of a Class 1 misdemeanor.

6. Pursuant to § 63.2-1509B of the Code of Virginia, certain medical facts indicating that a newborn may have been exposed to a controlled substance prior to birth constitute a reason to suspect that a child is abused or neglected and must be reported. Such facts shall include (i) a finding made by a health care provider within six weeks of the birth of a child that the child was born affected by substance abuse or experiencing withdrawal symptoms resulting from in utero drug exposure; (ii) a diagnosis made by a health care provider within four years following a child's birth that the child has an illness, disease, or condition that, to a reasonable degree of medical certainty, is attributable to maternal abuse of a controlled substance during pregnancy; or (iii) a diagnosis made by a health care provider within four years following a child's birth that the child has a fetal alcohol spectrum disorder attributable to in utero exposure to alcohol. When "reason to suspect" is based upon this subsection such fact shall be included in the report along with the facts relied upon by the person making the report. Such reports shall not constitute a per se finding of child abuse or neglect. If a health care provider in a licensed hospital makes any medical finding or diagnosis set forth in clause (i), (ii), or (iii) of this subdivision, the hospital shall require the development of a written discharge plan under protocols established by the hospital pursuant to § 32.1-127B 6 of the Code of Virginia.

a. For purposes of this regulation, "affected by substance abuse" is a determination by a health care professional and may be determined by clinical indicators that include maternal and infant presentation at birth; substance use and medical histories; and include toxicology study results of the infant that are positive for illegal substances or indicate abuse of controlled substances.

b. When a valid report or complaint is made pursuant to § 63.2-1509B of the Code of Virginia, the local department must immediately assess the child's circumstances and any threat to the child's health and safety. Pursuant to 22VAC40-705-110 A, the local department must conduct an initial safety assessment.

c. When a valid report or complaint is made pursuant to § 63.2-1509B of the Code of Virginia, the local department may petition a juvenile and domestic relations district court for any necessary services or court orders needed to ensure the safety and health of the child in accordance with § 16.1-241.3 of the Code of Virginia.

d. Pursuant to § 63.2-1506C of the Code of Virginia, when a valid report or complaint is based on one of the factors in § 63.2-1509B, the local department shall conduct a family assessment, unless an investigation is required or necessary to protect the safety of the child.

(1) Pursuant to § 63.2-1506 of the Code of Virginia, the local department shall determine whether the mother of an infant who was exposed to a controlled substance sought substance abuse counseling or treatment prior to the child's birth. For purposes of this chapter, substance abuse counseling or treatment includes education about the impact of alcohol and drugs, legal or illegal, on the infant and on the maternal-child relationship, and education about relapse prevention.

(2) The substance use counseling or treatment should attempt to serve the purposes of treating the substance use disorder, strengthening the maternal relationship with the infant and siblings, and achieving and maintaining a sober, drug-free lifestyle.

e. Pursuant to § 63.2-1506 of the Code of Virginia, the local department shall develop a plan of safe care.

f. Facts solely indicating that the infant may have been exposed to controlled substances prior to birth are not sufficient to render a founded disposition of abuse or neglect in an investigation.

B. Persons who may report child abuse or neglect include any individual who suspects that a child is being abused or neglected pursuant to § 63.2-1510 of the Code of Virginia.

C. Complaints and reports of child abuse or neglect may be made anonymously.

D. Any person making a complaint or report of child abuse or neglect shall be immune from any civil or criminal liability in connection therewith, unless it is proven that such person acted in bad faith or with malicious intent pursuant to § 63.2-1512 of the Code of Virginia.

E. When the identity of the reporter is known to the department or local department, these agencies shall not disclose the reporter's identity unless court ordered or required under § 63.2-1503D of the Code of Virginia. Upon request, the local department shall advise the person who was the subject of an unfounded investigation if the complaint or report was made anonymously.

F. If a person suspects that he is the subject of a report or complaint of child abuse or neglect made in bad faith or with malicious intent, that person may petition the court for access to the record including the identity of the reporter or complainant pursuant to § 63.2-1514 of the Code of Virginia.

G. Any person age 14 years or older who makes or causes to be made a knowingly false complaint or report of child abuse or neglect and is convicted shall be guilty of a Class 1 misdemeanor for a first offense pursuant to § 63.2-1513 of the Code of Virginia.

1. A subsequent conviction results in a Class 6 felony.

2. Upon receipt of notification of such conviction, the department will retain a list of convicted reporters.

3. The subject of the records may have the records purged upon presentation of a certified copy of such conviction.

4. The subject of the records shall be notified in writing that the records have been purged.

H. To make a complaint or report of child abuse or neglect, a person may telephone the department's toll-free child abuse and neglect hotline or contact a local department of jurisdiction pursuant to § 63.2-1510 of the Code of Virginia.

I. A local department of jurisdiction must determine the validity of a complaint of child abuse or neglect and, if valid, conduct an investigation or family assessment.

1. If the local department that first receives a complaint or report of child abuse or neglect has jurisdiction, that local department becomes a local department of jurisdiction and shall assume responsibility to determine validity and, if the complaint or report is valid, to ensure that a family assessment or an investigation is conducted.

2. If the local department that first receives a complaint or report of child abuse or neglect does not have jurisdiction, that local department must immediately do the following:

a. Document and transfer the complaint or report in the child abuse and neglect information system;

b. Contact the local department of jurisdiction to advise of the transfer; and

c. Advise the person making the complaint of the name and telephone number for the local department of jurisdiction.

3. A local department of jurisdiction may ask another local department to assist in conducting the family assessment or investigation. If assistance is requested, the local department shall comply.

4. A local department of jurisdiction may ask another local department through a cooperative agreement to assist in conducting the family assessment or investigation.

5. If a local department employee is suspected of abusing or neglecting a child, the complaint or report of child abuse or neglect shall be made to the juvenile and domestic relations district court of the county or city where the alleged abuse or neglect was discovered. The judge shall assign the report to a local department that is not the employer of the subject of the report, or if the judge believes that no local department in a reasonable geographic distance can be impartial in responding to the reported case, the judge shall assign the report to the court service unit of the judge's court for evaluation pursuant to §§ 63.2-1509 and 63.2-1510 of the Code of Virginia. The judge may consult with the department in selecting a local department to respond.

6. In cases where an employee at a private or state-operated hospital, institution, or other facility or an employee of a school board is suspected of abusing or neglecting a child in such hospital, institution, or other facility or public school, the local department of jurisdiction shall request the department and the relevant private or state-operated hospital, institution, or other facility or school board to assist in conducting a joint investigation in accordance with regulations adopted in 22VAC40-730, in consultation with the Departments of Education, Health, Medical Assistance Services, Behavioral Health and Developmental Services, Juvenile Justice, and Corrections.

22 Va. Admin. Code § 40-705-40

Derived from Virginia Register Volume 13, Issue 25, eff. January 1, 1998; amended, Virginia Register Volume 16, Issue 12, eff. March 29, 2000; Volume 19, Issue 6, eff. January 1, 2003; Volume 25, Issue 11, eff. March 4, 2009; Volume 28, Issue 23, eff. August 15, 2012; Amended, Virginia Register Volume 33, Issue 19, eff. 7/1/2017; Amended, Virginia Register Volume 36, Issue 02, eff. 10/17/2019; Amended, Virginia Register Volume 37, Issue 17, eff. 5/12/2021.

Statutory Authority: § 63.2-217 of the Code of Virginia.