2006 Code of Virginia § 63.2-1526 - Appeals of certain actions of local departments

63.2-1526. Appeals of certain actions of local departments.

A. A person who is suspected of or is found to have committed abuse orneglect may, within thirty days of being notified of that determination,request the local department rendering such determination to amend thedetermination and the local department's related records. Upon writtenrequest, the local department shall provide the appellant all informationused in making its determination. Disclosure of the reporter's name orinformation which may endanger the well-being of a child shall not bereleased. The identity of a collateral witness or any other person shall notbe released if disclosure may endanger his life or safety. Informationprohibited from being disclosed by state or federal law or regulation shallnot be released. The local department shall hold an informal conference orconsultation where such person, who may be represented by counsel, shall beentitled to informally present testimony of witnesses, documents, factualdata, arguments or other submissions of proof to the local department. Withthe exception of the local director, no person whose regular duties includesubstantial involvement with child abuse and neglect cases shall preside overthe informal conference. If the local department refuses the request foramendment or fails to act within forty-five days after receiving suchrequest, the person may, within thirty days thereafter, petition theCommissioner, who shall grant a hearing to determine whether it appears, by apreponderance of the evidence, that the determination or record containsinformation which is irrelevant or inaccurate regarding the commission ofabuse or neglect by the person who is the subject of the determination orrecord and therefore shall be amended. A person who is the subject of areport who requests an amendment to the record, as provided above, has theright to obtain an extension for an additional specified period of up tosixty days by requesting in writing that the forty-five days in which thelocal department must act be extended. The extension period, which may be upto sixty days, shall begin at the end of the forty-five days in which thelocal department must act. When there is an extension period, the thirty-dayperiod to request an administrative hearing shall begin on the termination ofthe extension period.

B. The Commissioner shall designate and authorize one or more members of hisstaff to conduct such hearings. The decision of any staff member sodesignated and authorized shall have the same force and effect as if theCommissioner had made the decision. The hearing officer shall have theauthority to issue subpoenas for the production of documents and theappearance of witnesses. The hearing officer is authorized to determine thenumber of depositions that will be allowed and to administer oaths oraffirmations 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 thesubject of the report has the right (i) to submit oral or written testimonyor documents in support of himself and (ii) to be informed of the procedureby which information will be made available or withheld from him. In case ofany information withheld, such person shall be advised of the general natureof such information and the reasons, for reasons of privacy or otherwise,that it is being withheld. Upon giving reasonable notice, either party at hisown expense may depose a nonparty and submit such deposition at the hearingpursuant to Board regulation. Upon good cause shown, after a party's writtenmotion, the hearing officer may issue subpoenas for the production ofdocuments or to compel the attendance of witnesses at the hearing, exceptthat alleged child victims of the person and their siblings shall not besubpoenaed, deposed or required to testify. The person who is the subject ofthe report may be represented by counsel at the hearing. Upon petition, thecourt shall have the power to enforce any subpoena that is not complied withor to review any refusal to issue a subpoena. Such decisions may not befurther appealed except as part of a final decision that is subject tojudicial review. Such hearing officers are empowered to order the amendmentof such determination or records as is required to make them accurate andconsistent with the requirements of this chapter or the regulations adoptedhereunder. If, after hearing the facts of the case, the hearing officerdetermines that the person who is the subject of the report has presentedinformation that was not available to the local department at the time of thelocal conference and which if available may have resulted in a differentdetermination by the local department, he may remand the case to the localdepartment for reconsideration. The local department shall have fourteen daysin which to reconsider the case. If, at the expiration of fourteen days, thelocal department fails to act or fails to amend the record to thesatisfaction of the appellant, the case shall be returned to the hearingofficer for a determination. If aggrieved by the decision of the hearingofficer, such person may obtain further review of the decision in accordancewith 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 acriminal charge is also filed against the appellant for the same conductinvolving the same victim as investigated by the local department, the appealprocess shall automatically be stayed until the criminal prosecution incircuit court is completed. During such stay, the appellant's right of accessto the records of the local department regarding the matter being appealedshall also be stayed. Once the criminal prosecution in circuit court has beencompleted, the local department shall advise the appellant in writing of hisright to resume his appeal within the time frames provided by law andregulation.

(1988, c. 407, 63.1-248.6:1; 1993, cc. 188, 955, 963; 1995, c. 7; 2002, c.747.)