                                 CODE OF VIRGINIA

APPEALS OF CERTAIN ACTIONS OF LOCAL DEPARTMENTS (§ 63.2-1526)

A. A person who is suspected of or is found to have committed abuse or neglect
may, within 30 days of being notified of that determination, request the local
department rendering such determination to amend the determination and the local
department&#8217;s related records. Upon written request, the local department
shall provide the appellant all information used in making its determination.
Disclosure of the reporter&#8217;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 45 days after receiving such
request, the person may, within 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 60 days by requesting in writing that the
45 days in which the local department must act be extended. The extension
period, which may be up to 60 days, shall begin at the end of the 45 days in
which the local department must act. When there is an extension period, the
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&#8217;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 14 days in which
to reconsider the case. If, at the expiration of 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 (&#xA7; 2.2-4025 et seq.) of
the Administrative Process Act (&#xA7; 2.2-4000 et seq.). Should the person
aggrieved by the hearing officer&#8217;s decision be a teacher licensed by the
Board of Education or through an alternative pathway and employed by a local
school board, the aggrieved person may petition the circuit court for a trial de
novo, by judge or jury. Such petition shall be filed within 30 days of the
aggrieved person&#8217;s receipt of the hearing officer&#8217;s decision in the
circuit court in the jurisdiction where the applicable local department is
located. Such aggrieved person is barred from filing any action for judicial
review of the agency action or the hearing officer&#8217;s decision under the
Administrative Processes Act (&#xA7; 2.2-4025 et seq.).

C. Whenever an appeal of the local department&#8217;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 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&#8217;s request for an appeal of the
local department&#8217;s finding, for 180 days after the appellant&#8217;s
request for appeal. During such stay, the appellant&#8217;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 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&#8217;s
request for an appeal of the local department&#8217;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.

HISTORY: 1988, c. 407, § 63.1-248.6:1; 1993, cc. 188, 955, 963; 1995, c. 7;
2002, c. 747; 2019, cc. 12, 296; 2023, c. 771.