Thank you for the opportunity to comment on the proposed regulation, which provides additional authority to the Commissioner to intervene in the business of local departments of social services.  After careful review, Fairfax County recommends that the proposed regulations include provisions that provide adequate notice to local departments regarding violations of the statute by clearly defining failure to provide public assistance services and that clarify the implications of withholding of funds.

The State Board of Social Services (Board) proposes to establish regulatory authority for the Commissioner of the Department of Social Services (Commissioner) to direct and oversee public assistance and social service programs in a county or city (locality), in the event that the local department fails, refuses, or is unable to provide such services. Pursuant to 22 Va. Adm. Code 40-677-10 (A).

Each county and city must provide public assistance and social services in accordance with the provisions of Subtitle II (§ 63.2-500 et seq.) and Subtitle III (§ 63.2-900 et seq.) of Title 63.2 of the Code of Virginia. If a local department fails or refuses to provide public assistance and social services in accordance with the statute, this regulatory action is needed to provide the Commissioner of the Department of Social Services with authority to direct and oversee the provision of public assistance and social services in the locality. The regulation is essential to protecting the health and welfare of citizens because it will ensure that public assistance and social services will continue to be provided.

The proposed regulation is vague and overbroad. Under the proposed language, an action triggering intervention by the Commissioner occurs when a locality “fails or refuses to provide public assistance.” However, failure and refusal are vague terms and are not defined by measurable standards that would give local departments an indication of when their programs are in jeopardy of Commissioner intervention. Maintaining this language in the regulations creates vague and arbitrary conditions that potentially limit the ability of local jurisdictions to foresee and cure issues that could lead to Commissioner intervention. The regulation does not define the depth and scope of what constitutes a failure or refusal and does not distinguish between individual cases or systemwide concerns. It is also unclear whether the Commissioner assumes authority over the entire department or whether the authority to intervene is limited to specific programs where the failure has been identified. Finally, the regulation does not define what is needed for the local department to regain control.

Without measurable and well-defined standards and performance expectations regarding failure and refusal, local departments cannot meaningfully work to avoid Commissioner intervention and maintain control. In the event of intervention by the commissioner, the regulation provides no guidance concerning what needs to occur before a local department can resume control.

The implications of withholding of funds are unclear.  The proposed regulation also considers withholding funds for these undefined violations.  Because of the lack of performance standards in the regulation, local departments are unable to meaningfully avoid or anticipate the fiscal impact of Commissioner intervention. Pursuant to 22 Va. Adm. Code 40-677-10(B)

The commissioner may also withhold from any county or city the entire reimbursement for administrative expenditures or any part thereof for the period of time such locality fails to operate public assistance programs or social service programs in accordance with state laws and regulations or fails to provide the necessary staff for the implementation of such programs.

The proposed language does not state whether funds will be withheld for the entire department or just for the program where the failure has been identified. Additionally, the section is silent and provides no guidance concerning under what circumstances the local departments will be allowed to regain control.

Administrative expenditures are a combination of federal and state funding that are used for staffing and operating costs. In FY20, Fairfax County received $40,671,593 in reimbursements from state (15% or $5,988,323) and federal (85% or $34,683,270) agencies, respectively. These funds represent a significant portion of our budget. Without funding for staff and operational support, programs cannot operate. Therefore, it is unclear how withholding funds will contribute to ameliorating any alleged program failures.  Additionally, there are limitations regarding the withholding of federal reimbursements, and we would encourage the Social Services Board to obtain clarity from regional federal offices to determine the scope of authority regarding withholding federal funds.

Conclusion

Regulatory language must include performance standards that provide local departments with adequate notice and clear articulation of a possible violation of the statute.  The regulation must also clarify the fiscal implications of Commissioner intervention and the withholding of reimbursements for administrative expenditures.

The purpose of the regulation should be to enable the application of the statute.  As written, this regulation restates what is in Va. Code § 63.2-408 and provides little or no guidance concerning its practical application. The Economic Impact Analysis specifically states that “Section 63.2-408 of the Code of Virginia allows the Board to authorize the Commissioner, under regulations, to ‘provide for the payment of public assistance or the furnishing of social services’ if a locality ‘fails or refuses’ to provide public assistance and social services.”  The proposed regulation does not provide guidance concerning the application of the statue and therefore fails its intended purpose.

Thank you again for the opportunity to provide comments to this proposed regulation.

Sincerely, Michael A. Becketts, Director Department of Family Services