2011 Annual Report - Virginia Attorney General

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xii 2011 REPORT OF THE ATTORNEY GENERAL adopted during the 2011 General Assembly that defined hospitals as including facilities in which five or more abortion per month are performed. The regulations were drafted to promote the health and safety of patients who have an abortion by creating procedure and facility guidelines. Health Services Section The attorneys in the Health Services Section represented the Commonwealth and the Department of Behavioral Health and Developmental Services in the federal investigation of Central Virginia Training Center in Lynchburg under the Civil Rights of Institutionalized Persons Act and the expanded investigation of the Commonwealth’s developmental disabilities services system under the Americans with Disabilities Act. The Department of Justice issued its findings letter in February 2011, and the attorneys in the Health Services Section represented the Commonwealth in settlement negotiations to avoid costly and lengthy litigation. The Section’s attorneys also defended the Department of Behavioral Health and Developmental Services in four federal district court lawsuits filed by residents of the Virginia Center for Behavioral Rehabilitation claiming violations of their civil rights. Two of the cases were appealed to the United States Court of Appeals for the Fourth Circuit and the Section’s attorneys are representing the Department to ensure that the favorable district court decisions are affirmed. The Section continued its efforts assisting the Department of Health Professions and its fourteen health regulatory boards in numerous disciplinary proceedings under the Administrative Process Act. Many of these cases were appealed by the disciplined professionals to state courts and the Section’s attorneys successfully represented the Boards. In addition, the Section successfully represented the Boards in three federal court cases filed by disciplined physicians. The attorneys in the Health Services Section provided legal advice to the State Board of Health as it adopted regulations governing abortion facilities. In addition, they represented the Department of Health in five cases filed in state courts challenging the Commissioner’s decisions regarding issuance of certificates of public need. The attorneys also provided advice to the Department of Health on a variety of issues, including isolation of TB patients, reporting of child abuse and neglect, vital records, exchange of health information, emergency medical services, employee grievances, and emergency preparedness. Medicaid & Social Services Section This section provided agency advice and defense on a variety of programs administered by the Department of Social Services (DSS), including the Food Stamp program, TANF, adoption, foster care, child care subsidy programs, and many other programs providing for the health and welfare of the citizens of the Commonwealth. This Office also successfully defended many cases appealed to circuit court regarding DSS’s decisions pursuant to these programs. The Departmental Appeals Board (DAB) for the Department of Health and Human Services agreed with the position taken by this Office with respect to an audit conducted by the Administration for Children and Families (ACF). This case involved the interpretation of federal regulations related to when a court must make a “contrary to the welfare determination” vis-à-vis the child’s removal from the home. The child
2011 REPORT OF THE ATTORNEY GENERAL xiii was placed in juvenile detention on an allegation that he was in violation of his probation. The court directed that the child be held in detention for several days, pending a detention hearing. He was then placed in foster care at the detention hearing. In conducting an annual audit of foster care cases, the ACF denied IV-E funding for this child on the assertion that the necessary findings should have been made when the child was placed in detention. In challenging the ACF determination, this Office argued that the regulatory interpretation was unreasonable because the child’s placement in detention would not be eligible for IV-E funding even if the required “contrary to the welfare determination” had been made. In reversing the disallowance, the DAB agreed with the position taken by this Office. Although the amount of money involved in this appeal is not large, the decision is significant. It is not often that a state prevails in challenges of ACF interpretations, so the “win” itself is important. The decision also has a farther reaching practical impact. Had the ACF interpretation prevailed, Virginia would be required to make a fundamental change in the manner in which the juvenile and domestic relations district courts enter orders holding children in detention. Such a change would be time consuming and costly. This Office successfully defended many findings of child abuse and neglect throughout the Commonwealth, including that in Nalley v. DSS, a sex abuse case involving a four-year-old girl repeatedly abused by her father. There was no criminal conviction in this case because the child was unable to face her father in court. This Office, however, was successful in obtaining a civil disposition of Founded--Sexual Abuse--Level Two. In Gonzalez v. DSS, this Office successfully defended a finding of child neglect against a family day home provider in case involving a young boy who was found playing in the snow near the roadway by a passing motorist. In Mills v. DSS, this Office successfully defended a finding of child abuse of a two-year-old boy by a day care provider who had slapped the young child in the face and grabbed his neck, leaving marks on his face and neck. The 2010 General Assembly made several appropriations that directed DSS to provide general fund money directly to charitable organizations in violation of Article IV § 16 of the Constitution of Virginia. In response to a Attorney General’s Opinion (11-002) on that subject, we provided DSS with advice on which appropriations fell under the constitutional prohibition and which did not. Several of these appropriations were removed from the 2011 Appropriations Act, only to be replaced with different ones. We provided advice on what should be done with those funds. That advice included assisting DSS and the Secretary’s Office in responding to a Delegate’s inquiry about why one particular appropriation could not be paid to a particular charitable organization. Additionally, this Office mitigated losses against the Commonwealth in a number of provider reimbursement cases by negotiating and settling such cases with opposing counsel. One example involves two such cases against Avante, an operator of nursing facilities throughout the Commonwealth. Pursuant to two DMAS audits, the agency found that Avante had reported excess costs for respiratory therapy services for FY2002 and 2003 (Avante I) and FY2006 (Avante II). Avante I was decided in favor of Avante by the Court of Appeals and was remanded to DMAS for a cost assessment, which would have involved extensive auditing by an outside auditing firm. Avante II was decided in favor of Avante but the Court denied a remand, which DMAS appealed to the Court of Appeals. If further administrative proceedings had
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2011 Annual Report - Virginia Attorney General

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