DEPARTMENT OF BEHAVIORAL HEALTH AND DEVELOPMENTAL SERVICES

Proposed Variances to Rules and Regulations to Assure the Rights of Individuals Receiving Services from Providers Licensed, Funded, or Operated by the Department of Behavioral Health and Developmental Services (DBHDS) (12VAC35-115).

Notice of action: The Department of Behavioral Health and Developmental Services (DBHDS), in accordance with Part VI, Variances (12VAC35-115-220), of the Rules and Regulations to Assure the Rights of Individuals Receiving Services from Providers Licensed, Funded, or Operated by the Department of Behavioral Health and Developmental Services (12VAC35-115), hereafter referred to as the “Human Rights Regulations,” is announcing an opportunity for public comment on the application for proposed variances to the Human Rights Regulations. The purpose of the regulations is to ensure and protect the legal and human rights of individuals receiving services in facilities or programs operated, licensed, or funded by DBHDS.

Each variance application references the specific part of these regulations to which a variance is needed, the proposed wording of the substitute rule or procedure, and the justification for a variance. Such application also describes time limits and other conditions for duration and the circumstances that will end the applicability of the variance. After considering all available information including comments, DBHDS intends to submit a written decision deferring, disapproving, modifying, or approving each variance renewal application. All variances shall be approved for a specific time period. The decision and reasons for variance will be published in a later issue of this Register.

Purpose of notice: DBHDS is seeking comment on the application for proposed new variances to the Human Rights Regulations for DBHDS’ Western State Hospital (WSH).

Variance to Procedures for Behavior Treatment Plans:

1. 12VAC35-115-105-H: Providers shall not use seclusion in a behavioral treatment plan.

Variance to Procedures for Behavior Treatment Plans and Use of Seclusion, Restraint, and Time Out:

1. 12VAC35-115-110-C-3: Only residential facilities for children that are licensed under the Regulations for Children’s Residential Facilities (12VAC35-46) and inpatient hospitals may use seclusion and only in an emergency.

Explanation: The requested variances will allow WSH to place an individual in an environment of seclusion, at his request, and not as related to an emergency, in order to prevent self-injurious harm to the individual and to the staff members responsible for his care. 

Variances to these regulations by the state facility listed above are reviewed by the SHRC at least annually, with reports to the SHRC regarding the variances as requested.

Public comment period: November 26, 2018, through December 26, 2018.

Description of proposal: The proposed variance applications for renewal must comply with the general requirements of Part VI, Variances (12VAC35-115-220), of the Human Rights Regulations.

How to comment: DBHDS accepts written comments by email, fax, and postal mail. In order to be considered, comments must include the full name, address, and telephone number of the person commenting and be received by DBHDS by the last day of the comment period. All information received is part of the public record.

To review a proposal: Variance applications and any supporting documentation may be obtained by contacting the DBHDS representative named below.

Contact Information: Deborah Lochart, Director, Office of Human Rights, Department of Behavioral Health and Developmental Services, 1220 East Bank Street, P.O. Box 1797, Richmond, VA 23218-1797, telephone (804) 786-0032, FAX (804) 804-371-2308, or email deb.lochart@dbhds.virginia.gov.