This proposed regulation provides the Commissioner of DSS with the regulatory authority to  direct and oversee the provision of public assistance and social services in the local department in the event the local department fails, refuses or is unable to provide such services.  The Commissioner already has the authority under 63.2-904.1 to intervene with the local agency if it fails to provide foster care services in accordance with state and federal laws and regulations.  There is language under 63.2-904.1 that addresses intervention by the DSS Commissioner, corrective action plan requirements, and the assumption of temporary control for foster care that also addresses the management of funds when this situation occurs.  When adding public assistance and social services to the programs the Commissioner shall intervene with should at least mirror the language of 63.2-904.1.  The current proposed regulatory language of 22 VAC40-677-10 use vague terms like what constitutes failure, refusal, or inability to provide services,  what constitutes "appropriate proceedings" and "transition plan".  The text does not address how an intervention would initially occur or how the local board would be notified of its failure, given an opportunity to reply to concerns, or take corrective action before the Commissioner would take control of the local agency.  The text does not address local agency metrics that would be the trigger to implement an intervention.  The local agency dashboards have been problematic and are often corrected due to errors.  The biggest concern is the vagueness of the financial impact or costs associated with such action in terms of local staffing, state staffing, and possibly hiring contractors or paying overtime to staff on loan from another local agency.

It is important to define the terms.  There is a difference between failing to provide and not having the ability to provide services.  In terms of the inability to provide services, local agencies struggle (due to low pay, long hours, stress, demands on work/home life balance, etc) to attract, maintain, and retain qualified staff.  Turnover rates, competition for staff with other local agencies who have salaries supplemented at a higher rate, year long learning curves, long term staff constantly training new trainees, etc. are challenges to local agencies.  We work with some of the most vulnerable Virginia citizens but are woefully and inadequately underfunded.  The process of determining when the Commissioner shall take control of a local agency should be a fair one, to include a list of goals for the local agency, a clear path to correct the problem, periodic performance reviews and the local agencies should be afforded due process beginning with a clearly written explanation as to why there are concerns and then the local agency should be given the opportunity to respond through various levels or steps that would lead to resolution of the issue and avoid a "hostile takeover" of a local agency.  An ounce of prevention is worth more than a pound of cure.  Local agencies should clearly know they are on a watch list for xx reasons before being notified by the Commissioner of the need to take control of the agency.   The Commissioner should only take control of an agency when all else fails or the local agency is not making any attempts to comply.  Thank you for the opportunity to comment.  Lisa Peacock, Director of Culpeper Human Services

The existing framework for delivery of DSS programs is based upon Virginia's State Supervised, Locally Administered model. This model allows for local departments of social services (LDSS) to provide mandated and non-mandated programs while the Virginia Department of Social Services (VDSS) provides oversight and guidance to ensure proper delivery. Through this reporting relationship, localities also receive and depend upon a significant portion of funding, on a reimbursement basis, from state and federal sources. Proposed language in 22 VAC40-677-10 is not reflective of the current framework of the state supervised, locally administered model. It does not clearly define the reporting relationship, metrics the LDSS are accountable for adhering to, or the responsibility of VDSS to support the LDSS in achieving proper delivery of programs and services. The proposed regulation also fails to provide a clear path for corrective action and source of funding required to return an LDSS to the locally administered model should it require VDSS intervention. Conversely, existing authority through 63.2-904.1 already allows the Commissioner to intervene in certain scenarios and better illustrates the existing VDSS and LDSS reporting structure.

The existing partnership and overall relationship between VDSS and LDSS mirrors the State Supervised, Locally Administered model as defined by The Code of Virginia Title 63.2 - Welfare (Social Services) Chapter 2. VDSS currently provides guidance, training, policy, quality assurance, program evaluation, best practices, and interpretation of federal and state policy to the LDSS. VDSS also provides fiscal oversight and direction as well as human resources management for many local agencies. The overall current rapport is positive with both entities having a strong understanding of existing resources, expectations and limitations. The proposed regulation assumes this tight partnership exists but fails to consider protection and guidelines for the locality should the relationship ever become strained. 

The vague terms as presented in 22 VAC40-677-10 are open for loose interpretation and do not account for shared accountability when faced with potential deficits in support, guidance, data collection, and/or overall program delivery at the state level. The regulation, as written, also fails to offer a clear understanding of what would require an intervention, process for resuming normal operations, and to what extent the local financial responsibility would be. It assumes a unique, rather than shared financial responsibility by the locality to provide additional or defer present financial assistance during and after an intervention. The regulation is intended to offer an instrument for the Commissioner to intervene upon the rare circumstance an LDSS blatantly fails or refuses to properly deliver programs, but it does not specify what necessitates an intervention or what occurs when the LDSS is simply unable to properly deliver. In fact, the latter scenario is the most likely of the three. Extraordinarily heavy workloads, limited funding, extensive program complexity, compressed salaries, and an increasingly limited labor pool combined with an enormous responsibility to protect the lives of our most vulnerable population results in an increased risk for many local agencies to fail. If an LDSS is unable to properly deliver, it could arguably be a result of VDSS having also failed, to an extent, in adequately meeting their oversight duties and thus corrective action and responsibility of associated costs might even be considered a common effort by both entities.

Language in 63.2-904.1 already provides the Commissioner with the authority to intervene when the LDSS fails to provide foster care services in accordance with existing regulations. Details contained in 63.2-904.1 more clearly demonstrate the existing reporting framework by properly incorporating and communicating with the LDSS and local governing body before, during, and after the intervention. Shared accountability and corrective action are expressed as well as a clear timeline for objectives to be met and goals for returning the LDSS back to the locality. The expectations are far clearer and the assumption of control and funding is measurable rather than infinite. The authority is also specific to the program in question and offers a basic outline of how an intervention would occur. This language should be incorporated into the proposed 22 VAC40-677-10 for an effective path to corrective action that incorporates and capitalizes on the combined efforts of the LDSS, Local Board, and Commissioner. Anything less would be an unfair and unacceptable regulation leaving the LDSS with many unanswered questions and placing additional burden on the Local Board to differentiate between conflicting intervention processes while surrendering critical funding without a strong understanding of how to effectively improve and recover.

I truly appreciate the opportunity to provide comment on this proposal.

Thank you,

Crystal Hale, Director of Orange County Dept. of Social Services

The proposed regulation authorizes the Commissioner to direct and oversee public assistance and social services programs in a county or city if that locality “fails, refuses, or is unable to provide public assistance or social services in accordance with the Code of Virginia.”  The regulation also authorizes the Commissioner to withhold the locality’s reimbursement for administrative expenditures, in whole or in part, for the period of time in which the locality fails to operate public assistance or social services programs in accordance with state laws and regulations or “fails to provide the necessary staff for the implementation of such programs.”

As noted in our public comments at the State Board of Social Services meeting in August 2019, the language of the regulation is very general and provides little guidance to local departments about when they may be deemed to be failing to provide services and how the state oversight would be implemented.  We would encourage the incorporation of procedures that would provide specificity regarding when and how this authority would be exercised.  Based on our discussions with the Department in fall 2019, we understand that the Department was developing such a set of procedures; at a minimum, the language of the regulation should stipulate that the authority envisioned in the regulation would be implemented in accordance with these procedures, which should also be vetted through the regulatory process, in order to allow stakeholder participation in their development.

We would recommend that the following elements be addressed in such a procedure:

• Metrics through which a local department’s failure to provide public assistance and social services would be documented.  These indicators should be developed in collaboration with local departments, should reflect performance indicators that are within local control, and should take into account local financial circumstances.  These metrics should be regularly made available to local departments and there should be opportunities to correct any data errors.
• A requirement that the Commissioner provide notice to a local department, as well as to the local chief administrative officer and the local governing body, that it is at risk of state oversight.  A local department should be afforded the opportunity to develop a corrective action plan and demonstrate improvement in compliance with the plan, and the Commissioner should intervene only when all other available mechanisms to assist a local department have been exhausted.  The corrective action plan should include commitments from the state to assist the local department in addressing deficiencies, to include potentially arranging for assistance from VDSS regional offices or neighboring departments.
• An opportunity for the local department and the local governing body to appear before the State Board of Social Services prior to the Board’s decision to authorize state intervention in the local department.
• An opportunity for the local governing body and the Commissioner to jointly develop and agree to a plan regarding reimbursement of the Commonwealth for expenditures incurred.  Such a plan should provide the locality with maximum flexibility in providing reimbursement so as not to stress its ability to continue providing necessary public services.  The progress reports discussed in section E of the proposed regulation should also be provided to the local governing body and its chief administrative officer.
• Clarification regarding how the language of the regulation will be interpreted that authorizes the withholding of reimbursement for administrative expenditures in cases where a local department “fails to provide the necessary staff” for public assistance or social services programs.  Who will determine what staffing levels are necessary for the provision of public assistance and social services?

Thank you for the opportunity to provide comment.  We appreciated the opportunity to discuss these issues with the Department in fall 2019 and would be glad to have further discussions at the Department’s convenience.

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