The wording in the communication from Lynne Williams, Director, Division of Licensing Programs, is: Repeal of the existing regulation and adoption of a new regulation is the most effective way to incorporate all applicable requirements from the Code of Virginia and make the necessary changes to achieve clarity and consistency with current practices and procedures. 

That is well-worded, and is a worthy reason for repeal and replacement of the regulation General Procedures and Information for Licensure, 22 VAC 40-80 et seq. But not knowing how those changes will read (The regulation itself is not complete and has not been presented to or approved by the State Board- Lynne Williams), it raises a concern as to what exactly will be adopted, and How?, and By whom?  

In my only seven years experience in Residential Care under Virginia State licensure, there is too much room for unelected officials to impose their biases and will in writing the language and/or facilitating the enforcement of "regulations" that are NOT the "applicable requirements from the Code of Virginia" (discussed, written, and approved by vote of our elected legislators).  

Two examples come to mind, showing that Autocratic Presumption dictated "Applicable Requirements": 

1. Is Home Schooling allowed in Residential Facilities?  The Virginia Standards for Licensed Children's Residential Facilities cite Code of Virginia 22.1-254.1, then state in parenthesis(Note: Home schooling is not allowed in residential facilities for children).  But after a thorough examination of that section of the Code of Virginia, there is nothing explicitly or implicitly relevant to forbidding residential facilities from home schooling (nor is it in 22VAC40-151-860 Education).   If anything, the Code states that the "parent who... provides a program of study... through a correspondence course or distance learning program or in any other manner" (italics mine) is within their legal rights to "elect to home school."  If a parent can use the instruction of a teacher on video through a distance learning program, then surely the "any other manner" could include the teacher live and in person.  

Now even if that reasoning is in any way a stretch, it is even more of a stretch to summarily state that the Code of Virginia forbids home schooling in residential facilities.  So that begs these questions: Who wrote that line?  And why?  The answer to the first question would most assuredly be an unelected official.  The answer to the second could most possibly be that such a prohibition was based on the bias of that official.  But then, and I've seen this firsthand, that parenthetical presumption ("not allowed") dictates the "regulation" imposed on the residential care facility.  If the facility tried to bypass it, then the same type of unelected official could cause unwelcome consequences.  

Keep in mind that there are residential facilities in the state of Virginia that accept private placements.  The parent of the child, according to the Code of Virginia, may "elect to home school... through... any other manner."  But through Autocratic Presumption, not Applicable Requirements, a "regulation" forbids it.  

2. Can photos of residents be used in promotional material?  I was told unequivocally by a County DSS official that they cannot, and that such a prohibition was mandated by state law.  You'll be hard pressed to find such a restriction in the Code of Virginia.  Rather, print media distributed by the State DSS simply informs that "permission" must be obtained by the parent or guardian.  But the rather rude unelected demagogue with whom I spoke said it "wouldn't happen on her watch" (she also inexplicably and unnecessarily called the children in her care "wards of the state").  Federal publications encourage DSS children to be included in photographs as a part of normalcy and feeling that they belong, and that even if pictures are taken by local newspapers, their use (even with their names) is permitted, just not with any distinction of being a "foster child." 

In my experience of taking pictures for newsletters, it is so exciting for the child to know their picture will be used.  They will "photo-bomb", or say , Hey, take a picture of me over here? or Will you put my picture in the next newsletter?  I've also seen children slink away in disappointment when pictures are taken because someone informed them they couldn't be in pictures.  So how did that autocratic DSS official become assured of such a prohibition based on law?  When I asked her that question, she continued to intensely assure, but without any legistlative authority behind the assurance.

So back to my quesiton: In the adoption of a new regulation, How will that be done?, and By whom?  Will we come out on the other end with some surprise "regulations" in how we are licensed that were based on autocratic presumption, and not applicable requirements?

Thank You for the opportunity to review and comment on the Guidelines and Procedures for Licensure. Below is a list of comments from The Eastern Prince William Area Family Child Care Association. This Local Family Child Care Association has over 30 members and is actively involved in advocacy efforts and promoting professional training and quality regulated family child care. We are also actively involved in The Family Child Care Advocacy Coalition, working with other Local Family Child Care Association for advocacy and knowledge.

The Licensing Process

Page 8    Part 1V

VAC 40-80-130

Comment: Clarifications in this area would be helpful to providers

Page 9

22 VAC 40-80-150  Regarding Home Occupancy Permits

Comment: This is still a burden and hindrance in many areas of the state and for providers trying to become licensed providers. Our recommendation is that this not be required. We know that a large part of the state is lacking the ability for licensed family child care due to outdated zoning ordinances and/or no process regarding zoning for these providers to follow in order to be issued a Home Occupancy Permit. In some areas, as in Richmond, it is $1800.00 just to apply and submit an application. Though we support regulated family child care, it is critical that we have in place guidelines and practices that support a provider in ANY and ALL areas of the state wishing to operate and become licensed and not hinder it being an available option for child care for the working parents. We are concerned that this is not being address and that in order to support regulated family child care across the state DSS also needs to be aware of what the barriers are.

Page 11

22 VAC 40-8-170 “Notice to the applicant of issuance or denial of licenses”

Comment: The Eastern Prince William Area Family Child Care Association would like to suggest guidance to be included on how to rectify if denied. This clarification and guidance would then serve and offer providers guidance and support which may be needed.

Under Renewal Process

Page 13 Is the application still mailed out? Or only mailed out by some licensing offices and to some providers? As a local association we recommend that this is clarified and if it is only available via the website that is it stated. If the renewal application is mailed in some areas but not in others, this serves as an unjust way of doing it and unfair to providers as there needs to be consistency so all providers receive this information in the same manner.

Also the wording of "it shall be submitted in a timely manner" is used for when to submit the application and information. The Eastern Prince William Area Family Child Care Association would like to suggest clarification on what "timely manner" means. As it is currently worded, it is open to individual interpretation both on the side of the provider and also the side of the Licensing Specialist, which could create unnecessary conflict.

Page 19

Administrative Sanctions.

 Letter F

Currently this area states "Requires licensees to contact parents, guardians or other responsible persons in writing regarding health and safety violations.”

We are seeking clarification on if that included child abuse allegations or as to what it includes and what doesn't fall in this area. At what point is a provider to let parents know of child abuse allegations? And also at what point is something regarding this on the DSS Website under the provider’s file and name search? This is something that every provider should know and it should be clarified someplace.

Once again, The Eastern Prince William Area Family Child Care Association thanks you for the time to comment on this. We are made up of over 30 regulated providers serving the Eastern End of Prince William County to promote quality regulated family child care. Collectively also work with other organizations and local family child care associations for promote professionalism and as a Family Child Care Advocacy Coalition.

Mary Braxton, President- Eastern Prince William Area Family Child Care Association

Active Participant with The Family Child Care Advocacy Coalition

VAFCCA, Former President

VAFCCA, Former Board Member of 15 Years

1braxton@comcast.net

571-288-4466

Thank you for the opportunity to review and comment on the repealing and replacing of the General Procedures and Information for Licensure. Unfortunately, without sufficient information of the proposed changes, it is difficult to give comprehensive review and response at the NOIRA stage regarding the proposed changes to the general procedures. On behalf of the Virginia Assisted Living Association, we strongly disagree with the process of a wholesale repeal of existing language to be replaced by the new langue. To ensure a thorough review of final set of regulations, we request that a version of the new regulations with the changes tracked be made public so that stakeholders can easily review and provide quality feedback on the new language. If tracked changes is too cumbersome for the Department staff, then we strongly request the Agency provide a means to compare the new language with the existing language. Trying to determine where the changes have been made without an underlined/strike-through version will prove to be very cumbersome to all other parties involved, including the providers, the general public, the State Board Members, and other regulatory agencies. These regulations go the heart of operations for Assisted Living communities, and it is far too important to risk having even the smallest of changes overlooked that could result in the loss or denial of licensure. Given the limited time and attention that the State Board Members, the Secretary’s office, and the Governor will have to give to the review of this major overhaul, we think that the more information available to all interested parties, including the public, will only help to ensure the best possible product and outcome.