Final Text
CHAPTER 115
RULES AND REGULATIONS TO ASSURE THE RIGHTS OF INDIVIDUALS
RECEIVING SERVICES FROM PROVIDERS [ OF MENTAL HEALTH, MENTAL RETARDATION,
] AND [ OR SUBSTANCE ABUSE SERVICES LICENSED, FUNDED, OR
OPERATED BY THE DEPARTMENT OF MENTAL HEALTH, MENTAL RETARDATION AND SUBSTANCE
ABUSE SERVICES ]
Part I
General Provisions
12VAC35-115-10. Authority and applicability.
A. The Code of Virginia authorizes these regulations to
further define and to protect the rights of individuals receiving
services from providers of mental health, mental retardation and, or
substance abuse services in the Commonwealth of Virginia. The regulations
require providers of services to take specific actions to protect the rights of
each individual. The regulations establish remedies when rights are violated or
in dispute, and provide a structure for support of these rights.
B. Providers subject to these regulations include:
1. Facilities operated by the department under Article 1
(§37.1-1 et seq.) of Chapter 1 of Title 37.1 Chapters 3 (§37.2-300 et
seq.) and 7 (§37.2-700 et seq.) of Title 37.2 of the Code of Virginia;
2. Sexually violent predator programs created established
under §37.1-70.10 §37.2-909 of the Code of Virginia;
3. Community services boards that provide services under
Chapter 10 (§37.1-194 et seq.) of Title 37.1 5 (§37.2-500 et seq.) of
Title 37.2 of the Code of Virginia;
4. Behavioral health authorities that provide services under
Chapter 15 (§37.1-242 et seq.) of Title 37.1 6 (§37.2-600 et seq.) of
Title 37.2 of the Code of Virginia;
5. Providers, public Public or private, providers
that operate programs or facilities licensed by the department under Chapter
8 (§37.1-179 et seq.) of Title 37.1 Article 2 (§37.2-403 et seq.) of
Chapter 4 of Title 37.2 of the Code of Virginia except those operated by
the Department of Corrections; and
6. Any other providers receiving funding from or through
the department. [ Providers of services under Part C of the Individuals
with Disabilities Education Act (IDEA), 20 §§USC 1431-1444, that are subject to
these regulations solely by receipt of Part C funds from or through the
department shall comply with all applicable IDEA regulations found in 34 CFR
Part 303 in lieu of these regulations. ]
C. Unless another law takes priority, and to the extent
that they are not preempted by the Health Insurance Portability and
Accountability Act of 1996 and the regulations promulgated thereto precedence,
these regulations apply to all individuals who are receiving services from a
public or private provider of services operated, licensed or funded by the Department
of Mental Health, Mental Retardation and Substance Abuse Services, except those
operated by the Department of Corrections.
D. These regulations apply to individuals under forensic
status and individuals committed to the custody of the commissioner department
as sexually violent predators, except to the extent that the commissioner may
determine these regulations are not applicable to them. The exemption must be
in writing and based solely on the need to protect individuals receiving
services, employees, or the general public. Thereafter, the The commissioner
shall submit give the State Human Rights Committee (SHRC) chairperson
prior notice of all exemptions and provide the written exemption to
the State Human Rights Committee (SHRC) SHRC for its information.
The commissioner shall give the SHRC chairperson prior notice regarding all
exemptions. Such These exemptions shall be time limited and services
shall not be compromised.
Statutory Authority
§§37.2-203 and 37.2-400 of the Code of Virginia.
Historical Notes
Derived from Virginia Register Volume 18, Issue 3, eff. November 21, 2001; amended, Virginia Register Volume 23, Issue 25, eff. September 19, 2007.
12VAC35-115-20. Policy.
A. Each individual who receives services shall be assured:
1. Protection to exercise his legal, civil, and human rights related to the receipt of those services;
2. Respect for basic human dignity; and
3. Services that are provided consistent with sound therapeutic practice.
B. Providers shall not deny any person individual
his legal rights, privileges or benefits solely because he has been
voluntarily or involuntarily admitted, certified for admission or
committed to services. These legal rights include, but are not limited to,
the right to:
1. Acquire, retain, and dispose of property;
2. Sign legal documents;
3. Buy or sell;
4. Enter into contracts;
5. Register and vote;
6. Get married, separated, divorced, or have a marriage annulled;
7. Hold a professional, occupational, or vehicle operator''s license;
8. Make a will and execute an advance directive; and
9. Have access to lawyers and the courts.
Statutory Authority
§§37.2-203 and 37.2-400 of the Code of Virginia.
Historical Notes
Derived from Virginia Register Volume 18, Issue 3, eff. November 21, 2001; amended, Virginia Register Volume 23, Issue 25, eff. September 19, 2007.
12VAC35-115-30. Definitions.
The following words and terms when used in this chapter shall have the following meanings, unless the context clearly indicates otherwise:
"Abuse" means any act or failure to act by an
employee or other person responsible for the care of an individual in a
facility or program operated, licensed, or funded by the department, excluding
those operated by the Department of Corrections, that was performed or was
failed to be performed knowingly, recklessly, or intentionally, and that caused
or might have caused physical or psychological harm, injury, or death to an
individual receiving services a person receiving care or treatment for
mental illness, mental retardation, or substance abuse. Examples of abuse
include but are not limited to the following acts such as:
1. Rape, sexual assault, or other criminal sexual behavior;
2. Assault or battery;
3. Use of language that demeans, threatens, intimidates or humiliates the person;
4. Misuse or misappropriation of the person''s assets, goods or property;
5. Use of excessive force when placing a person in physical or mechanical restraint;
6. Use on a person of physical or mechanical restraints on
a person that is not in compliance with federal and state laws, regulations,
and policies, professionally accepted standards of practice, or the
person''s individualized services plan; and
7. Use of more restrictive or intensive services or denial of
services to punish the person or that is not consistent with his individualized
services plan. See §37.1-1 §37.2-100 of the Code of Virginia.
"Advance directive" means a document voluntarily
executed in accordance with §54.1-2983 of the Code of Virginia or the laws of
another state where executed ([ ref. ] §54.1-2993
of the Code of Virginia). This may include a wellness recovery action plan
(WRAP) or similar document as long as it is executed in accordance with
§54.1-2983 of the Code of Virginia or the laws of another state. A WRAP or
similar document may identify the health care agent who is authorized to act as
the individual's substitute decision maker.
"Authorization" means a document signed by the individual receiving services or that individual's authorized representative that authorizes the provider to disclose identifying information about the individual. An authorization must be voluntary. To be voluntary, the authorization must be given by the individual receiving services or his authorized representative freely and without undue inducement, any element of force, fraud, deceit, or duress, or any form of constraint or coercion.
"Authorized representative" means a person
permitted by law or these regulations to authorize the disclosure of
information or to consent to treatment and services or participation in human
research. The decision-making authority of an authorized representative
recognized or designated under these regulations is [ specific
to the limited to decisions pertaining to the ] designating
provider. Legal guardians, attorneys-in-fact, or health care agents appointed
pursuant to §54.1-2983 of the Code of Virginia may have decision-making
authority beyond [ any specific such ] provider.
"Behavior [ management intervention ]
" means those principles and methods employed by a provider to help an
individual receiving services to achieve a positive outcome and to
address and correct inappropriate [ challenging ]
behavior in a constructive and safe manner. Behavior management principles and
methods must be employed in accordance with the individualized service services
plan and written policies and procedures governing service expectations,
treatment goals, safety, and security.
"Behavioral treatment program plan, functional
plan, or behavioral support plan" means any set of documented
procedures that are an integral part of the interdisciplinary treatment individualized
services plan and are developed on the basis of a [ systemic systematic ]
data collection, such as a functional assessment, for the purpose
of assisting an individual receiving services to achieve any or all
of the following:
1. Improved behavioral functioning and effectiveness;
2. Alleviation of symptoms of psychopathology; or
3. Reduction of [ serious challenging ]
behaviors.
A behavioral treatment program can also be referred to as a
behavioral treatment plan or behavioral support plan.
"Board" means the State Mental Health, Mental Retardation and Substance Abuse Services Board.
"Caregiver" means an employee or contractor who provides care and support services; medical services; or other treatment, rehabilitation, or habilitation services.
"Commissioner" means the Commissioner of the Department of Mental Health, Mental Retardation and Substance Abuse Services.
"Community services board ( " or "CSB)"
means a citizens'' board the public body established pursuant to §37.1-195
§37.2-501 of the Code of Virginia that provides or arranges for the
provision of mental health, mental retardation, and substance abuse programs
and services to [ consumers individuals ] within the
political subdivision or subdivisions establishing each city and county
that established it. For the purpose of these regulations, community
services board also includes a behavioral health authority established pursuant
to §37.2-602 of the Code of Virginia.
"Complaint" is means an expression
of dissatisfaction, grievance, or concern by, or on behalf of, an individual
receiving services that has been brought to the attention of the provider, an
employee of the provider, a human rights advocate, or the protection and
advocacy agency, and alleges a violation or potential allegation of a
violation of these regulations or program a provider''s policies
and procedures related to these regulations. A complaint is
"informal" when a resolution is pursued prior to contact with the
human rights advocate. See 12VAC35-115-160.
"Consent" means the voluntary and expressed
agreement of an individual, or that individual''s legally
authorized representative if the individual has one to specific
services. Informed consent is needed to disclose information that
identifies an individual receiving services. Informed consent is also needed
before a provider may provide treatment to an individual which poses risk of
harm greater than that ordinarily encountered in daily life or during the
performance of routine physical or psychological examinations, tests, or
treatments, or before an individual participates in human research. Informed
consent is required for surgery, aversive treatment, electroconvulsive
treatment, and use of psychoactive medications. Consent to any action for which
consent is required under these regulations must be voluntary. To be voluntary,
the consent must be given by the individual receiving services, or his legally
authorized representative, so situated as to be able to exercise free power of
choice without undue inducement or any element of force, fraud, deceit, duress,
or any form of constraint or coercion. To be informed, consent must be based on
disclosure and understanding by the individual or legally authorized
representative, as applicable, of the following kinds of information:
1. A fair and reasonable explanation of the proposed action
to be taken by the provider and the purpose of the action. If the action
involves research, the provider shall describe the research and its purpose,
and shall explain how the results of the research will be disseminated and how
the identity of the individual will be protected;
2. A description of any adverse consequences and risks to be
expected and, particularly where research is involved, an indication whether
there may be other significant risks not yet identified;
3. A description of any benefits that may reasonably be
expected;
4. Disclosure of any alternative procedures that might be
equally advantageous for the individual together with their side effects,
risks, and benefits;
5. An offer to answer any inquiries by the individual, or
his legally authorized representative;
6. Notification that the individual is free to refuse or
withdraw his consent and to discontinue participation in any prospective
service requiring his consent at any time without fear of reprisal against or
prejudice to him;
7. A description of the ways in which the resident or his
legally authorized representative can raise concerns and ask questions about
the service to which consent is given;
8. When the provider proposes human research, an explanation
of any compensation or medical care that is available if an injury occurs;
9. Where the provider action involves disclosure of records,
documentation must include:
a. The name of the organization and the name and title of
the person to whom the disclosure is made;
b. A description of the nature of the information to be
disclosed, the purpose of the disclosure, and an indication whether the consent
extends to information placed in the individual''s record after the consent was
given but before it expires;
c. A statement of when the consent will expire, specifying
a date, event, or condition upon which it will expire; and
d. An indication of the effective date of the consent.
Consent must be given freely and without undue inducement, any element of force, fraud, deceit, or duress, or any form of constraint or coercion. Consent may be expressed through any means appropriate for the individual, including verbally, through physical gestures or behaviors, in Braille or American Sign Language, in writing, or through other methods.
"Department" means the Department of Mental Health,
Mental Retardation and Substance Abuse Services (DMHMRSAS).
"Director" means the chief executive officer of any program
provider delivering services. [ In organizations that also
include services not covered by these regulations, the director is the chief
executive officer of the services or services licensed, funded, or operated by
the department. ]
"Discharge plan" means the written plan that
establishes the criteria for an individual''s discharge from a service and identifies
and coordinates planning for aftercare delivery of any
services needed after discharge.
"Disclosure" means the release by a provider of
information identifying an individual [ by a provider ].
"Emergency" means a situation that requires a person
to take immediate action to avoid harm, injury, or death to an individual receiving
services or to others, or to avoid substantial property damage.
"Exploitation" means the misuse or misappropriation
of the individual''s assets, goods, or property. Exploitation is a type of
abuse. (See §37.1-1 §37.2-100 of the Code of Virginia.)
Exploitation also includes the use of a position of authority to extract
personal gain from an individual receiving services. Exploitation
includes but is not limited to violations of 12VAC35-115-120 (Work) and
12VAC35-115-130 (Research). Exploitation does not include the billing of an
individual''s third party payer for services. Exploitation also does not include
instances of use or appropriation of an individual''s assets, goods or property
when permission is given by the individual or his legally authorized
representative:
1. With full knowledge of the consequences;
2. With no inducements; or and
3. Without force, misrepresentation, fraud, deceit, duress of any form, constraint, or coercion.
"Governing body of the provider" means the person or
group of persons who have with final authority to [ set
establish ] policy [ and hire and fire directors ].
[ For the purpose of these regulations, the governing body of a CSB
means the public body established according to Chapter 5 (§37.2-500 et seq.) or
Chapter 6 (§37.2-600 et seq.) of Title 37.2 of the Code of Virginia, and shall
include administrative policy community services boards, operating community
services boards, local government departments with policy-advisory boards, and
the board of a behavioral health authority. ]
"Habilitation" refers to means the
provision of [ individualized ] services [ conforming
to current acceptable professional practice ] that enhance the
strengths of, teach functional skills to, or reduce or eliminate [ problematic
challenging ] behaviors of an individual receiving services.
These services occur in an environment that suits the individual''s needs,
responds to his preferences, and promotes social interaction and adaptive
behaviors. [ In order to be considered sound and therapeutic,
habilitation must conform to current acceptable professional practice. ]
"Health care operations" means any activities of the provider to the extent that the activities are related to its provision of health care services. Examples include:
1. Conducting quality assessment and improvement activities, case management and care coordination, contacting of health care providers and patients with information about treatment alternatives, and related functions that do not include treatment;
2. Reviewing the competence or qualifications of health care professionals, evaluating practitioner and provider performance, and training, licensing or credentialing activities;
3. Conducting or arranging for medical review, legal services, and auditing functions, including fraud and abuse detection and compliance programs; and
4. Other activities contained within the definition of health care operations in the Standards for Privacy of Individually Identifiable Health Information, 45 CFR 164.501.
"Health plan" means an individual or group plan that provides or pays the cost of medical care, including any entity that meets the definition of "health plan" in the Standards for Privacy of Individually Identifiable Health Information, 45 CFR 160.103.
"Historical research" means the review of
information that identifies individuals receiving services for the purpose of
evaluating or otherwise collecting data of general historical significance. See
12VAC35-115-80 C 2 j B (Confidentiality).
"Human research" means any systematic investigation that
uses human participants who may be exposed to potential physical or
psychological injury if they participate and which departs from established and
accepted therapeutic methods appropriate to meet the participants'' needs,
including research development, testing, and evaluation, utilizing human
subjects, that is designed to develop or contribute to generalized knowledge.
Human research shall not [ be] conducted in compliance
with §§32.1-162.16 through 32.1-162-20 and 37.1-24.01 of the Code of Virginia,
and 12VAC35-180-110 et seq., or any applicable federal policies and regulations
[ deemed to ] include research exempt from federal
research regulations pursuant to 45 CFR 46.101(b).
"Human rights advocate" means a person employed by the commissioner upon recommendation of the State Human Rights Director to help individuals receiving services exercise their rights under this chapter. See 12VAC35-115-250 C.
"Individual" means a person who is receiving services. This term includes the terms "consumer," "patient," "resident," "recipient," and "client."
"Individualized services plan" or "ISP"
means a comprehensive and regularly updated written plan [ of
action to meet the needs and preferences of an individual. An ISP describes
measurable goals and objectives and expected outcomes of services and is
designed to meet the needs of a specific individual. The term ISP includes
treatment plan, functional plan, habilitation plan, or plan of care
that describes the individual's needs, the measurable goals and objectives to
address those needs, and strategies to reach the individual's goals. An ISP is
person-centered, empowers the individual, and is designed to meet the needs and
preferences of the individual. The ISP is developed through a partnership
between the individual and the provider and includes an individual's treatment
plan, habilitation plan, person-centered plan, or plan of care ] .
"Informed consent" means the voluntary written
agreement of an individual, or that individual's authorized representative to
surgery, electroconvulsive treatment, use of [ psychotrophic
psychotropic ] medications, or any other treatment or service that
poses a risk of harm greater than that ordinarily encountered in daily life or
for participation in human research. To be voluntary, informed consent must be
given freely and without undue inducement, any element of force, fraud, deceit,
or duress, or any form of constraint or coercion.
"Inspector general" means a person appointed by the Governor to provide oversight by inspecting, monitoring, and reviewing the quality of services that providers deliver.
"Investigating authority" means any person or entity that is approved by the provider to conduct investigations of abuse and neglect.
"Legally authorized representative" means a
person permitted by law or these regulations to give informed consent for
disclosure of information and give informed consent to treatment, including
medical treatment, and participation in human research for an individual who
lacks the mental capacity to make these decisions.
"Licensed professional" means a physician, licensed clinical psychologist, licensed professional counselor, licensed clinical social worker, licensed or certified substance abuse treatment practitioner, or certified psychiatric nurse specialist.
"Local Human Rights Committee ( " or
"LHRC)" means a group of at least five people appointed by
the State Human Rights Committee. See 12VAC35-115-250 D for membership and
duties.
[ "Mechanical restraint" means the use of
any mechanical device that restricts the freedom of movement or voluntary
functioning of an individual's limb or a portion of his body when the
individual does not have the option to remove the device. ]
"Neglect" means the failure by an
individual a person, program, or facility operated,
licensed, or funded by the department, excluding those operated by the
Department of Corrections, responsible for providing services to provide
do so, including nourishment, treatment, care, goods, or services
necessary to the health, safety, or welfare of a person receiving care
or treatment for mental illness, mental retardation, or substance abuse.
See §37.1-1 §37.2-100 of the Code of Virginia.
"Next friend" means a person whom a provider may
appoint designated [ by a director ] in
accordance with 12VAC35-115-70 B 9 c [ 12VAC35-115-146
12VAC35-115-146 B ] to serve as the legally authorized
representative of an individual who has been determined to lack capacity to give
consent or authorize the disclosure of identifying information, when
required under these regulations.
"Peer-on-peer [ harm
aggression ] " means a physical act [ or
, ] verbal [ threat or demeaning ] expression
by an individual against or to another individual that [ results
in causes physical or emotional ] harm to [ the
that ] individual. [ Harm includes
Examples include ] hitting, [ kicking, scratching, ]
and [ other ] threatening behavior [ with
the means to carry out the threat ]. [ Incidents
of harm shall be investigated as Such instances may constitute ]
potential neglect [ pursuant to 12VAC35-115-50 D 3 ].
[ "Person centered" means focusing on the needs and preferences of the individual, empowering and supporting the individual in defining the direction for his life, and promoting self-determination, community involvement, and recovery. ]
"Program rules" means the operational rules and
expectations that providers establish to promote the general safety and
well-being of all individuals in the program and [ that
to ] set standards for how individuals will interact with one
another in the program. Program rules include any expectation that produces a
consequence for the individual within the program. Program rules may be included
in a handbook or policies [ and shall be available to the
individual ].
"Protection and advocacy agency" means the state
agency designated under the federal Protection and Advocacy for Individuals
with Mental Illness (PAIMI) Act and the Developmental Disabilities (DD) Act.
The protection and advocacy agency is the Department for the Rights of
Virginians with Disabilities (DRVD) Virginia Office for Protection and
Advocacy.
"Provider" means any person, entity, or organization offering services that is licensed, funded, or operated by the department.
"Psychotherapy notes" means comments recorded in any medium by a health care provider who is a mental health professional documenting and analyzing an individual or a group, joint, or family counseling session that are separated from the rest of the individual's health record. Psychotherapy notes shall not include annotations relating to medication and prescription monitoring, counseling session start and stop times, treatment modalities and frequencies, clinical test results, or any summary of any symptoms, diagnosis, prognosis, functional status, treatment plan, or the individual's progress to date.
"Research review committee" or "institutional
review board" means a committee of professionals [ to provide that
provides ] complete and adequate review of research activities. The
committee shall be sufficiently qualified through maturity, experience, and
diversity of its members, including consideration of race, gender, and cultural
background, to promote respect for its advice and counsel in safeguarding the
rights and welfare of participants in human research. (See §37 1-24.01 §37.2-402
of the Code of Virginia and 12VAC35-180-110 et seq 12VAC35-180.)
"Residential setting" means a place where an
individual lives and services are available from a provider on a 24?hour
basis. This includes hospital settings.
"Restraint" means the use of [ an approved
a ] mechanical device, medication, physical intervention
[ , ] or hands-on hold, or pharmacological agent to involuntarily
prevent an individual receiving services from moving his body to engage
in a behavior that places him or others at [ imminent ] risk. The
term includes restraints used for behavioral, medical, or protective purposes.
There are three kinds of restraints:
1. Mechanical restraint means the use of [ an
approved a ] mechanical device that cannot be removed by
the individual to restrict the freedom of movement or functioning of a limb or
a portion of an individual's body [ when that behavior places him
or others at imminent risk ] .
2. Pharmacological restraint means the use of a medication that is administered involuntarily for the emergency control of an individual's behavior when [ that individual's behavior places him or others at imminent risk and ] the administered medication is not a standard treatment for the individual's medical or psychiatric condition.
3. Physical restraint, also referred to as manual hold, means the use of a physical intervention or hands-on hold to prevent an individual from moving his body [ when that individual's behavior places him or others at imminent risk ].
[ Restraints may be used for the following
behavioral, medical, or protective purposes:
1. ] A restraint used for [ "Behavioral"
purposes means ] the use of an approved [ using a
physical hold, ] a [ psychotropic medication, or ]
a [ mechanical device ] that is used for the purpose
of controlling [ to control behavior or involuntarily ]
restricting [ restrict the freedom of movement of ]
the [ an individual in an instance when all of the
following conditions are met: (i) ] in which there is an
imminent risk of an individual harming himself or others, including staff;
[ there is an emergency, (ii) ] when [ nonphysical
interventions are not viable ] ; [ , and (iii) ]
when [ safety issues require an immediate response.
2. ] A restraint used for "medical"
[ Medical purposes means ] the use of an approved
mechanical or [ using a physical hold, medication or
mechanical device to limit the mobility of the individual for medical,
diagnostic, or surgical purposes, such as routine dental care or
radiological procedures and related post-procedure care processes,
when ] the [ use of ] such device [ the
restraint is not ] a standard [ the accepted
clinical practice for the individual''s condition.
3. ] A restraint used for "protective"
[ Protective purposes means ] the use of [ using
a mechanical device to compensate for a physical or cognitive deficit ]
when the individual does not have the option to remove the device [ .
The device may limit an individual''s movement, for example, bed rails or a
gerichair, and prevent possible harm to the individual ] (e.g.,
bed rail or gerichair) [ or it may create a passive barrier,
such as a helmet, to protect the individual ] (e.g., helmet).
4. A "mechanical restraint" means the use of an
approved mechanical device that involuntarily restricts the freedom of movement
or voluntary functioning of a limb or a portion of a person''s body as a means
to control his physical activities when the individual receiving services does
not have the ability to remove the device.
5. A "pharmacological restraint" means a drug that
is given involuntarily for the emergency control of behavior when it is not a
standard treatment for the individual''s medical or psychiatric condition.
6. A "physical restraint" (also referred to
"manual hold") means the use of approved physical interventions or
"hands?on" holds to prevent an individual from moving his body to
engage in a behavior that places him or others at risk of physical harm.
Physical restraint does not include the use of "hands?on"
approaches that occur for extremely brief periods of time and never exceed more
that a few seconds duration and are used for the following purposes:
a. To intervene in or redirect a potentially dangerous
encounter in which the individual may voluntarily move away from the situation
or hands?on approach; or
b. To quickly de?escalate a dangerous situation that could
cause harm to the individual or others.
[ "Restraints for behavioral purposes" means using a physical hold, medication, or a mechanical device to control behavior or involuntarily restrict the freedom of movement of an individual in an instance when all of the following conditions are met: (i) there is an emergency, (ii) nonphysical interventions are not viable, and (iii) safety issues require an immediate response.
"Restraints for medical purposes" means using a physical hold, medication, or mechanical device to limit the mobility of an individual for medical, diagnostic, or surgical purposes, such as routine dental care or radiological procedures and related postprocedure care processes, when use of the restraint is not the accepted clinical practice for treating the individual's condition.
"Restraints for protective purposes" means using a mechanical device to compensate for a physical or cognitive deficit when the individual does not have the option to remove the device. The device may limit an individual's movement, for example, bed rails or a gerichair, and prevent possible harm to the individual or it may create a passive barrier, such as a helmet to protect the individual. ]
"Restriction" means anything that limits or prevents an individual from freely exercising his rights and privileges.
"Seclusion" means the involuntary placement of an
individual receiving services alone, in a locked room or
secured an area from which he is physically prevented from
leaving secured by a door that is locked or held shut by a staff person,
by physically blocking the door, or by any other physical or verbal means, so
that the individual cannot leave it.
"Serious injury" means any injury resulting in bodily hurt, damage, harm, or loss that requires medical attention by a licensed physician.
"Services" means [ mental health, mental
retardation and substance abuse care; treatment; training; habilitation; or
other supports, including medical care, delivered by a provider care,
treatment, training, habilitation, interventions, or other supports, including
medical care, delivered by a provider licensed, operated or funded by the
department ] .
"Services plan" means a plan that defines and
describes measurable goals and objectives and expected outcomes of service and
is designed to meet the needs of a specific individual. The term
"''services plan" also includes, but is not limited to, individualized
services plan, treatment plan, habilitation plan or plan of care.
"Services record" means all written [ and electronic ] information [ that ] a provider keeps about an individual who receives services.
"State Human Rights Committee ( " or
"SHRC)" means a committee of nine members appointed by the
board that is accountable for the duties prescribed in 12VAC35-115-230 12VAC35-115-250
E. See 12VAC35-115-250 E for membership and duties.
"State Human Rights Director" means the person employed by and reporting to the commissioner who is responsible for carrying out the functions prescribed in 12VAC35-115-250 F.
"Time out" means assisting an individual to
regain emotional control by removing the individual from his immediate
environment to a different, open location until he is calm or the problem
behavior has subsided the involuntary removal of an individual by a
staff person from a source of reinforcement to a different, open location for a
specified period of time or until the problem behavior has subsided to
discontinue or reduce the frequency of problematic behavior.
"Treatment" means the individually planned,
sound, and therapeutic interventions that are intended to improve or maintain
functioning of an individual receiving services [ in those areas
that show impairment as the result of mental receiving services
delivered by providers licensed, funded, or operated by the department ]
disability, substance addiction [ illness, mental
retardation, substance use (alcohol or other drug dependence or abuse)
disorders, or physical impairment. ] In order to be considered
sound and therapeutic, the treatment must conform to current acceptable
professional practice.
Statutory Authority
§§37.2-203 and 37.2-400 of the Code of Virginia.
Historical Notes
Derived from Virginia Register Volume 18, Issue 3, eff. November 21, 2001.
Part II
Assurance of Rights
12VAC35-115-40. Assurance of rights.
A. These regulations protect the rights established in §37.1-84.1
§37.2-400 of the Code of Virginia.
B. Individuals are entitled to know what their rights are under these regulations; therefore, providers shall take the following actions:
1. Display, in areas most likely to be noticed by the individual, a document listing the rights of individuals under these regulations and how individuals can contact a human rights advocate. [ The document shall be presented in the manner, format, and languages most frequently understood by the individual receiving services. ]
2. Notify each individual and his authorized representative,
as applicable, about these rights and how to file a complaint. The notice
shall be in writing and in any other form most easily understood by the
individual. The notice shall [ tell an individual how he can contact
provide the name and phone number of ] the human rights advocate
and give a short description of the human rights advocate''s role. The provider
shall give this notice [ to and discuss it with the individual ]
at the time [ an individual begins ] services [ begin ]
and every year thereafter.
3. Ask the individual or legally his authorized
representative as applicable to sign the notice of rights. File the
signed notice in the individual''s services record. If the individual or legally
his authorized representative cannot or will not sign the notice, the
person who gave the notice shall document that fact in the individual''s
services record.
4. Give a complete copy of these regulations to anyone who asks for one.
5. Display and provide information as requested by the protection and advocacy agency director that informs individuals of their right to contact the protection and advocacy agency.
[ 6. Display and provide written notice of rights in
the most frequently used languages. ]
C. Every individual receiving services has a right to
seek informal resolution [ of his complaint ] and
[ file make ] a human rights complaint. Any individual receiving
services or anyone acting on his behalf who thinks that a provider has
violated any of his rights under these regulations may [ file make ]
a complaint and get help in [ filing making ] the
complaint in Part IV accordance with Part V (12VAC35-115-150 et
seq.) of this chapter.
D. Other rights and remedies may be available. These regulations shall not prevent any individual from pursuing any other legal right or remedy to which he may be entitled under federal or state law.
Statutory Authority
§§37.2-203 and 37.2-400 of the Code of Virginia.
Historical Notes
Derived from Virginia Register Volume 18, Issue 3, eff. November 21, 2001.
Part III
Explanation of Individual Rights and Provider Duties
12VAC35-115-50. Dignity.
A. Each individual receiving services has a right to
exercise his legal, civil, and human rights, including constitutional rights,
statutory rights, and the rights contained in these regulations, except
as specifically limited herein. [ Each individual has a right to have
services that he receives respond to his needs and preferences and be
person-centered. ] Each individual also has the right to be protected,
respected, and supported in exercising these rights. Providers shall not
partially or totally take away or limit these rights solely because an
individual has a mental illness, mental retardation, or substance abuse
problem use disorder and is receiving services for these conditions
or has any physical or sensory condition that may pose a barrier to
communication or mobility.
B. In receiving all services, each individual has the right to:
1. Use his preferred or legal name. The use of an
individual's preferred name may be limited when a licensed professional makes
the determination that the use of the name will result in demonstrable harm or
have significant negative impact on the program itself or the individual's
treatment, progress, and recovery. The director [ or his designee ]
shall [ inform discuss the issue with ] the
individual and [ inform the ] human rights advocate of
the reasons for any restriction prior to implementation and the reasons for the
restriction shall be documented in the individual's services record. The need
for the restriction shall be reviewed by the [ treatment ]
team every month and documented in the services record.
2. Be protected from harm including abuse, neglect, and exploitation.
3. Have help in learning about, applying for, and fully using
any public service or benefit to which he may be entitled. These services and
benefits include but are not limited to educational or vocational
services, housing assistance, services or benefits under Titles II, XVI, XVIII,
and XIX of the Social Security Act, United States Veterans Benefits, and
services from legal and advocacy agencies.
4. Have opportunities to communicate in private with lawyers,
judges, legislators, clergy, licensed health care practitioners, legally
authorized representatives, advocates, the inspector general, and employees of
the protection and advocacy agency.
5. Be provided with general information about program services
[ and , ] policies [ , and rules in writing and ]
in [ a the ] manner [ , format and language ]
easily understood by the individual.
C. In services provided in residential and inpatient settings, each individual has the right to:
1. Have sufficient and suitable clothing for his exclusive use.
2. Receive [ a ] nutritionally adequate,
varied, and appetizing [ diet meals that are ] prepared
and served under sanitary conditions [ and, are ]
served at appropriate times and temperatures [ , and are consistent
with any individualized diet program ].
3. Live in a [ humane, ] safe, sanitary
[ , and humane physical ] environment that gives each
individual, at a minimum:
a. Reasonable privacy and private storage space;
b. An adequate number [ and design ] of
private, operating toilets, sinks, showers, and tubs [ that are
designed to accommodate individuals' physical needs ];
c. Direct outside air provided by a window that opens or by an air conditioner;
d. Windows or skylights in all major areas used by individuals;
e. Clean air, free of bad odors; and
f. Room temperatures that are comfortable year round and compatible with health requirements.
4. Practice a religion and participate in religious services
subject to their availability, provided that such services are not dangerous to
self the individual or others and do not infringe on the freedom
of others.
a. Religious services or practices that present a danger of bodily injury to any individual or interfere with another individual's religious beliefs or practices may be limited. [ The director or his designee shall discuss the issue with the individual and inform the human rights advocate of the reasons for any restriction prior to implementation. The reasons for the restriction shall be documented in the individual's services record. ]
b. Participation in religious services or practices may be reasonably limited by the provider in accordance with other general rules limiting privileges or times or places of activities.
5. Have paper, pencil and stamps provided free of charge for at
least one letter every day upon request. [ If However, if ]
an individual has funds [ for clothing and ] to
buy paper, pencils, and stamps to send a letter every day, the provider does
not have to pay for them.
6. Communicate privately with any person by mail and have help in writing or reading mail as needed.
a. An individual's access to mail may be limited [ only ] if the provider has reasonable cause to believe that the mail contains illegal material or anything dangerous. If so, the director [ or his designee ] may open the mail, but not read it, in the presence of the individual.
b. An individual's ability to communicate by mail may be limited if, in the judgment of a licensed professional, the individual's communication with another person or persons will result in demonstrable harm to the individual's mental health.
c. The director [ or his designee ] shall
[ inform discuss the issue with ] the
individual and [ inform the ] human rights advocate of
the reasons for any restriction prior to implementation and the reasons for the
restriction shall be documented in the individual's services record. The need
for the restriction shall be reviewed by the [ treatment ]
team every month and documented in the services record.
7. Communicate privately with any person by mail or
telephone and get have help in doing so. Use of the telephone
may be limited to certain times and places to make sure that other individuals
have equal access to the telephone and that they can eat, sleep, or participate
in an activity without being disturbed.
a. An individual's access to the telephone may be limited [ only ] if, in the judgment of a licensed professional, communication with another person or persons will result in demonstrable harm to the individual or significantly affect his treatment.
b. The director [ or his designee ] shall
[ inform discuss the issue with ] the
individual and [ inform ] the human rights advocate of
the reasons for any restriction prior to implementation and the reasons for the
restriction shall be documented in the individual's services record. The need
for the restriction shall be reviewed by the [ treatment ]
team every month and documented in the individual's services record.
c. Residential substance abuse services providers [ that are not inpatient hospital settings or crisis stabilization programs ] may develop policies and procedures that limit the use of the telephone during the initial phase of treatment when sound therapeutic practice requires restriction, subject to the following conditions:
(1) Prior to implementation and when it proposes any changes or revisions, the provider shall submit policies and procedures, program handbooks, or program rules to the LHRC and the human rights advocate for review and approval.
(2) When an individual applies for admission, the provider shall notify him of these restrictions.
8. Have or refuse visitors.
a. An individual's access to visitors may be limited or supervised [ only ] when, in the judgment of a licensed professional, the visits result in demonstrable harm to the individual or significantly affect the individual's treatment or when the visitors are suspected of bringing contraband or threatening harm to the individual in any other way.
b. The director [ shall inform or
his designee shall discuss the issue with ] the individual and
[ inform ] the human rights advocate of the reasons for any
restriction prior to implementation and the restriction shall be documented in
the individual's services record. The need for the restriction shall be
reviewed by the [ treatment ] team every month
and documented in the individual's services record.
c. Residential substance abuse service providers [ that are not inpatient hospital settings or crisis stabilization programs ] may develop policies and procedures that limit visitors during the initial phase of treatment when sound therapeutic practice requires the restriction, subject to the following conditions:
(1) Prior to implementation and when proposing any changes
or revisions, the provider shall submit policies and procedures, program
handbooks, or program rules [ of conduct ] to
the LHRC and the human rights advocate for review and approval.
(2) The provider shall notify individuals who apply for admission of these restrictions.
9. Nothing in these provisions shall prohibit a provider from stopping, reporting, or intervening to prevent any criminal act.
D. The provider''s duties.
1. Providers shall recognize, respect, support, and protect the dignity rights of each individual at all times. In the case of a minor, providers shall take into consideration the expressed preferences of the minor and the parent or guardian.
2. Providers shall develop, carry out, and regularly monitor policies and procedures that assure the protection of each individual''s rights.
3. Providers shall assure the following relative to abuse,
neglect, and exploitation.:
a. Policies and procedures governing harm, abuse, neglect, and exploitation of individuals receiving their services shall require that, as a condition of employment or volunteering, any employee, volunteer, consultant, or student who knows of or has reason to believe that an individual may have been abused, neglected, or exploited at any location covered by these regulations, shall immediately report this information directly to the director.
b. The director shall immediately take necessary steps to
protect the individual receiving services until an investigation is
complete. This may include the following actions:
(1) Direct the employee or employees involved to have no
further contact with the individual. In the case of incidents of
peer-on-peer [ harm aggression ], protect
the individuals from the aggressor in accordance with sound therapeutic
practice and these regulations.
(2) Temporarily reassign or transfer the employee or employees involved to a position that has no direct contact with individuals receiving services.
(3) Temporarily suspend the involved employee or employees pending completion of an investigation.
c. The director shall immediately notify the human rights
advocate and the legally individual''s authorized representative,
as applicable. In no case shall notification exceed be later than
24 hours from after the receipt of the initial allegation of
abuse, neglect, or exploitation.
d. In no case shall the director punish ore or
retaliate against an employee, volunteer, consultant, or student for reporting
an allegation of abuse, neglect, or exploitation to an outside entity.
e. The director shall initiate an impartial investigation
within 24 hours of receiving [ notification a
report of potential abuse or neglect ]. The investigation shall be
conducted by a person trained to do investigations and who is not involved in
the issues under investigation.
(1) The investigator shall make a final report to the director or the investigating authority and to the human rights advocate within 10 working days of appointment. Exceptions to this timeframe may be requested and approved by the department if submitted prior to the close of the sixth day.
(2) The director or investigating authority shall, based on the investigator''s report and any other available information, decide whether the abuse, neglect or exploitation occurred. Unless otherwise provided by law, the standard for deciding whether abuse, neglect, or exploitation has occurred is preponderance of the evidence.
(3) If abuse, neglect or exploitation occurred, the director shall take any action required to protect the individual and other individuals. All actions must be documented and reported as required by 12VAC35-115-230.
(4) In all cases, the director shall provide his
written notice decision, including actions taken as a result of the
investigation, within seven working days following the completion of the
investigation of the decision and all actions taken to the individual or
the individual''s legally authorized representative, the human rights
advocate, the investigating authority, and the involved employee or employees.
[ The decision shall be in writing and in the manner, format, and
language that is most easily understood by the individual. ]
(5) If the individual affected by the alleged abuse, neglect,
or exploitation or his legally authorized representative is not
satisfied with the director''s actions, he or his legally authorized
representative, or anyone acting on his behalf, may file a petition for an LHRC
hearing under 12VAC35-115-180.
f. The director shall cooperate with any external
investigation, including those conducted by the inspector general, the
protection and advocacy agency, or other regulatory and or
enforcement agencies.
g. If at any time the director has reason to suspect that an
individual may have been abused or neglected, the director shall immediately
report this information to the appropriate local Department of Social Services
(see §§63.1?55.3 and 63.1?248.3 §§63.2-1509 and 63.2-1606
of the Code of Virginia) and cooperate fully with any investigation that
results.
h. If at any time the director has reason to suspect that the abusive, neglectful or exploitive act is a crime, the director [ or his designee ] shall immediately contact the appropriate law-enforcement authorities and cooperate fully with any investigation that results.
E. Exceptions and conditions to the provider''s duties.
1. If an individual has funds for clothing and to buy paper,
pencils, and stamps to send a letter every day, the provider does not have to
pay for them.
2. The provider may prohibit any religious services or
practices that present a danger of bodily injury to any individual or interfere
with another individual''s religious beliefs or practices. Participation in
religious services or practices may be reasonably limited by the provider in
accordance with other general rules limiting privileges or times or places of
activities.
3. If a provider has reasonable cause to believe that an
individual''s mail contains illegal material or anything dangerous, the director
may open the mail, but not read it, in the presence of the individual. The
director shall inform the individual of the reasons for the concern. An
individual''s ability to communicate by mail may also be limited if, in the
judgment of a licensed physician or doctoral level psychologist (in the
exercise of sound therapeutic practice), the individual''s communication with
another person or persons will result in demonstrable harm to the individual''s
mental health. The reasons for the restriction shall be documented in the
individual''s service record, the human rights advocate shall be notified prior
to implementation.
4. Providers may limit the use of a telephone in the
following ways:
a. Providers may limit use to certain times and places to
make sure that other individuals have equal access to the telephone and that
they can eat, sleep, or participate in an activity without being disturbed.
b. Providers may limit use by individuals receiving
services for substance abuse, but only if sound therapeutic practice requires
the restriction and the human rights advocate is notified.
c. Providers may limit an individual''s access to the
telephone if communication with another person or persons will result in
demonstrable harm to the individual and is significantly impacting treatment in
the judgment of a licensed physician or doctoral level psychologist. The
reasons for the restriction shall be documented in the individual''s service
record and the human rights advocate shall be notified prior to implementation.
5. Providers may limit or supervise an individual''s visitors
when, in the judgment of a licensed physician or doctoral level psychologist,
the visits result in demonstrable harm to the individual and significantly
impact the individual''s treatment; or when the visitors are suspected of
bringing contraband or in any other way are threatening harm to the individual.
The reasons for the restriction shall be documented in the individual''s service
record, and the human rights advocate shall be notified prior to
implementation.
6. Providers may stop, report or intervene to prevent any
criminal act.
Statutory Authority
§§37.2-203 and 37.2-400 of the Code of Virginia.
Historical Notes
Derived from Virginia Register Volume 18, Issue 3, eff. November 21, 2001.
12VAC35-115-60. Services.
A. Each individual receiving services shall receive those services according to law and sound therapeutic practice.
B. The provider''s duties.
1. Providers shall develop, carry out, and regularly monitor
policies and procedures [ governing prohibiting ]
discrimination in the provision of services. Providers shall comply with all
state and federal laws, including any applicable provisions of the Americans
with Disabilities Act (42 USC §12101 et seq.), that prohibit discrimination on
the basis of race, color, religion, ethnicity, age, sex, disability, or ability
to pay. These policies and procedures shall require, at a minimum, the
following:
a. An individual or anyone acting on his behalf may complain to the director if he believes that his services have been limited or denied due to discrimination.
b. If an individual makes a complaint complains
of discrimination, the director shall assure that an appropriate investigation
is conducted immediately. The director shall make a decision, take action, and
document the action within 10 working days of receipt of the complaint.
c. A written copy of the decision and the director''s action shall be forwarded to the individual [ and his authorized representative ], the human rights advocate, and any employee or employees involved.
d. If the individual or his legally authorized
representative, as applicable, is not satisfied with the director''s
decision or action, he may file a petition for an LHRC hearing under
12VAC35-115-180.
2. Providers shall ensure that all [ clinical ]
services, including medical services and treatment, are at all times delivered within
in accordance with sound therapeutic practice. Providers may deny or
limit an individual's access to services if sound therapeutic practice requires
limiting the service to individuals of the same sex or similar age, disability,
or legal status.
3. Providers shall develop and implement policies and procedures that address emergencies. These policies and procedures shall:
a. Identify what caregivers may do to respond to an emergency.;
b. Identify qualified clinical staff who are accountable for
assessing emergency conditions and determining the appropriate intervention.;
c. Require that the director immediately notify the
individual''s legally authorized representative, if there is one,
and the advocate if an emergency results in harm or injury to any individual.;
and
d. Require documentation in the individual''s services record of all facts and circumstances surrounding the emergency.
4. Providers shall assign a specific person or group of persons to carry out each of the following activities:
a. Medical, mental health, and behavioral screenings and assessments, as applicable, upon admission and during the provision of services;
b. Preparation, implementation, and appropriate changes
[ in to ] an individual''s services plan based on the
ongoing review of the medical, mental, and behavioral needs of the individual receiving
services; and
c. Preparation and implementation of an individual''s discharge plan; and
d. [ Approval of seclusion and restraint
Review of every use of seclusion or restraint by a qualified professional who
is involved in providing services to the individual ].
5. Providers shall not prepare or deliver any service for
any to an individual without a services plan that is tailored
specifically to the needs and expressed preferences of the individual receiving
services and, in the case of a minor, the minor and the minor's parent
or guardian. Services provided in response to emergencies or crises shall
be deemed part of the services plan and thereafter documented in the
individual''s services plan.
6. Providers shall write the services plan and discharge plan in clear, understandable language.
7. When preparing and or changing an individual''s
services or discharge plan, providers shall ensure that all services received
by the individual are integrated. With the individual''s or the individual's
authorized representative's [ consent authorization ],
providers may involve family members in services and discharge planning. When
the individual or his authorized representative requests such involvement, the
provider shall take all reasonable steps to do so. In the case of services to
minors, the parent or guardian or other person authorized to consent to
treatment pursuant to §54.1-2969 A of the Code of Virginia shall be involved in
[ service and ] discharge planning.
8. Providers shall ensure that the entries in an individual''s services record are at all times authentic, accurate, complete, timely, and pertinent.
C. Exceptions and conditions to the provider''s duties.
1. Providers may deny or limit an individual''s access to a
service or services if sound therapeutic practice requires limiting the service
to individuals of the same sex, or similar age, disability, or legal status.
2. With the individual''s or legally authorized
representative''s consent, providers may involve family members in services and
discharge planning. When the individual or the legally authorized
representative requests such involvement, the provider shall take all
reasonable steps to do so.
Statutory Authority
§§37.2-203 and 37.2-400 of the Code of Virginia.
Historical Notes
Derived from Virginia Register Volume 18, Issue 3, eff. November 21, 2001.
12VAC35-115-70. Participation in decision making and consent.
A. Each individual has a right to participate meaningfully in decisions regarding all aspects of services affecting him. This includes the right to:
1. Participate meaningfully in the preparation,
implementation and any changes to the individual''s services and discharge
plans.
2. Express his preferences and have them incorporated into
the services and discharge plans consistent with his condition and need for
services and the provider''s ability to provide.
3. Object to any part of a proposed services or discharge
plan.
4. Give or not give consent for treatment, including medical
treatment. See Consent 12VAC35-115-30.
5. Give or not give written informed consent for
electroconvulsive treatment prior to the treatments or series of treatments.
a. Informed consent shall be documented on a form that
shall become part of the individual''s services record. In addition to
containing the elements of informed consent as set forth in the definition of
"consent" in 12VAC35-115-30, this form shall:
(1) Specify the maximum number of treatments to be
administered during the series;
(2) Indicate that the individual has been given the
opportunity to view an instructional video presentation about the treatment
procedures and their potential side effects;
(3) Be signed by the individual receiving the treatment, or
the individual''s legally authorized representative, where applicable; and
(4) Be witnessed in writing by a person not involved in the
individual''s treatment who attests that the individual has been counseled and
informed about the treatment procedures and the potential side effects of the
procedures.
b. Separate consent, documented on a separate consent form,
shall be obtained for any treatments exceeding the maximum number of treatments
indicated on the initial consent form.
c. Providers shall inform the individual receiving services
or the legally authorized representative, as applicable, that the individual
may obtain a second opinion before receiving electroconvulsive treatment and
shall document such notification in the individual''s services record.
d. Before initiating electroconvulsive treatment for any
individual under age 18 years, two qualified child psychiatrists must concur
with the treatment. The psychiatrists must be trained or experienced in
treating children and adolescents and not directly involved in treating the
individual. Both must examine the individual, consult with the prescribing
psychiatrist, and document their concurrence with the treatment in the
individual''s services record.
6. Give or not give informed consent for participation in
human research.
7. Give or not give consent to the disclosure of information
the provider keeps about him. See 12VAC35-115-80.
8. Have a legally authorized representative make decisions
for him in cases where the individual lacks capacity to give informed consent.
9. Object to any decision that allows a legally authorized
representative to make decisions for him. This includes having a professional
assessment of capacity to consent and, at the individual''s own expense, an
independent assessment of capacity.
10. Be accompanied by someone the individual trusts as his
representative when participating in services planning.
11. Indicate by signature in the service record, the
individual''s participation in and agreement to services plan, discharge plan,
changes to these plans, and all other significant aspects of treatment and
services he receives.
12. Request admission to or discharge from any service any
time.
1. Consent or not consent to receive or participate in services.
a. The ISP and discharge plan shall incorporate the individual's preferences consistent with his condition and need for service and the provider's ability to address them;
b. The individual's services record shall include evidence that the individual has participated in the development of his ISP and discharge plan, in changes to these plans, and in all other significant aspects of his treatment and services; and
c. The individual's services record shall include the signature or other indication of the individual's or his authorized representative's consent.
2. Give or not give informed consent to receive or
participate in treatment or services that pose a risk of harm greater than
ordinarily encountered in daily life and to participate in human research
except research that is exempt under §37.2-162.17 of the Code of Virginia.
Informed consent is always required for [ surgery
surgical procedures ] , electroconvulsive treatment, or use of
psychotropic medications.
a. To be informed, consent for any treatment or service must be based on disclosure of and understanding by the individual or his authorized representative of the following information:
(1) An explanation of the treatment, service, or research and its purpose;
(2) When proposing human research, the provider shall describe the research and its purpose, explain how the results of the research will be disseminated and how the identity of the individual will be protected, and explain any compensation or medical care that is available if an injury occurs;
(3) A description of any adverse consequences and risks associated with the research, treatment, or service;
(4) A description of any benefits that may be expected from the research, treatment, or service;
(5) A description of any alternative procedures that might be considered, along with their side effects, risks, and benefits;
(6) Notification that the individual is free to refuse or withdraw his consent and to discontinue participation in any treatment, service, or research requiring his consent at any time without fear or reprisal against or prejudice to him; [ and ]
(7) A description of the ways in which the individual or
his authorized representative can raise concerns and ask questions about the
research [ or, ] treatment [ ,
or service ] to which consent is given [ ; and. ]
[ (8) When the provider proposes human research, an
explanation of any compensation or medical care that is available if an injury
occurs. ]
b. Evidence of informed consent shall be documented in an individual's services record and indicated by the signature of the individual or his authorized representative on a form or the ISP.
c. Informed consent for electroconvulsive treatment requires the following additional components:
(1) Informed consent shall be in writing, documented on a form that shall become part of the individual's services record. This form shall:
(a) Specify the maximum number of treatments to be administered during the series;
(b) Indicate that the individual has been given the opportunity to view an instructional video presentation about the treatment procedures and their potential side effects; and
(c) Be witnessed in writing by a person not involved in the individual's treatment who attests that the individual has been counseled and informed about the treatment procedures and potential side effects of the procedures.
(2) Separate consent, documented on a [ separate
new ] consent form, shall be obtained for any treatments exceeding
the maximum number of treatments indicated on the initial consent form.
(3) Providers shall inform the individual [ receiving
services ] or his authorized representative that the individual
may obtain a second opinion before receiving electroconvulsive treatment and
the individual is free to refuse or withdraw his consent and to discontinue
participation at any time without fear of reprisal against or prejudice to him.
The provider shall document such notification in the individual's services
record.
(4) Before initiating electroconvulsive treatment for any individual under age 18 years, two qualified child psychiatrists must concur with the treatment. The psychiatrists must be trained or experienced in treating children or adolescents and not directly involved in treating the individual. Both must examine the individual, consult with the prescribing psychiatrist, and document their concurrence with the treatment in the individual's services record.
3. Have an authorized representative make decisions for him
in cases where the individual [ lacks has been
determined to lack the ] capacity to consent or authorize the
disclosure of information.
a. If an individual who has an authorized representative who is not his legal guardian objects to the disclosure of specific information or a specific proposed treatment or service, the director [ or his designee ] shall immediately notify the human rights advocate and authorized representative. A petition for LHRC review of the objection may be filed under 12VAC35-115-200.
b. If the authorized representative objects or refuses to consent to a specific proposed treatment or service for which consent is necessary, the provider shall not institute the proposed treatment, except in an emergency in accordance with this section [ or as otherwise permitted by law ].
4. Be accompanied, except during forensic evaluations, by
[ someone a person or persons ] whom the
individual trusts [ as his representative to support
and represent him ] when he participates in services planning,
assessments, [ and ] evaluations, including
discussions and evaluations of the individual's capacity to consent, and
discharge planning.
5. Request admission to or discharge from any service at any time.
B. The provider''s duties.
1. Providers shall respect, protect, and help develop each
individual''s ability to participate meaningfully in decisions regarding all
aspects of services affecting him. This shall be done by involving the
individual, to the extent permitted by his capacity, in decision-making decision
making regarding all aspects of services.
2. Providers shall ask the individual to express his preferences about decisions regarding all aspects of services that affect him and shall honor these preferences to the extent possible.
3. Providers shall give each individual the opportunity,
and any help he needs, to participate meaningfully in the preparation of
his services plan, discharge plan, and changes to these plans, and all other
aspects of services he receives. Providers shall document these opportunities
in the individual''s services record.
4. Providers shall obtain and document in the individual''s
services record the individual''s consent prior to disclosing any information
about him. See 12VAC35-115-80 for the rights, duties, exceptions, and
conditions relating to disclosure.
5. 4. Providers shall obtain and document in the
individual''s services record the individual''s or his authorized
representative''s consent for any treatment, including medical treatment,
before the treatment it begins. If the individual is a minor in
the legal custody of a natural or adoptive parent, the provider shall obtain
this consent from at least one parent. The consent of a parent is not needed if
a court has ordered or consented to treatment or services pursuant to §16.1-241
D, 16.1-275, or 54.1-2969 B of the Code of Virginia, or a local department of
social services with custody of the minor has provided consent. Reasonable
efforts must be made, however, to notify the parent or legal custodian promptly
following the treatment or services. Additionally, a competent minor may
independently consent to treatment of for sexually transmitted or
contagious diseases, family planning or pregnancy, or outpatient
services or treatment for mental illness, emotional disturbance, or addictions
substance use disorders pursuant to §54.1-2969 E of the Code of
Virginia.
5. Providers may initiate, administer, or undertake a proposed treatment without the consent of the individual or the individual's authorized representative in an emergency. All emergency treatment or services and the facts and circumstances justifying the emergency shall be documented in the individual's services record within 24 hours of the treatment or services.
a. Providers shall immediately notify the authorized representative of the provision of treatment without consent during an emergency.
b. Providers shall continue emergency treatment without consent beyond 24 hours only following a review of the individual's condition and if a new order is issued by a professional who is authorized by law and the provider to order treatment.
c. Providers shall notify the human rights advocate if emergency treatment without consent continues beyond 24 hours.
d. Providers shall develop and integrate treatment strategies into the ISP to address and prevent future emergencies to the extent possible following provision of emergency treatment without consent.
6. Providers shall obtain and document in the individual''s
services record the individual''s informed consent of the individual
or his authorized representative to continue any treatment initiated in an
emergency that lasts longer than 24 hours after the emergency began.
7. If the capacity of an individual to give consent is in
doubt, the provider shall make sure that a professional qualified by expertise,
training, education, or credentials and not directly involved with the
individual conducts an evaluation and makes a determination of the individual''s
capacity.
8. If the individual or his family objects to the results of
the qualified professional''s determination, the provider shall immediately
inform the human rights advocate.
a. If the individual or family member wishes to obtain an
independent evaluation of the individual''s capacity, he may do so at his own
expense and within reasonable timeframes consistent with his circumstances. The
provider shall take no action for which consent is required, except in an
emergency, pending the results of the independent evaluation. The provider
shall take no steps to designate a legally authorized representative until the
independent evaluation is complete.
b. If the independent evaluation is consistent with the
provider''s evaluation, the evaluation is binding, and the provider shall
implement it accordingly.
c. If the independent evaluation is not consistent with the
provider''s evaluation, the matter shall be referred to the LHRC for review and
decision under Part IV (12VAC35-115-150 et seq.) of this chapter.
9. When it is determined that an individual lacks the
capacity to give consent, the provider shall designate a legally authorized
representative. The director shall have the primary responsibility for
determining the availability of and designating a legally authorized
representative in the following order of priority:
a. An attorney-in-fact currently authorized to give consent
under the terms of a durable power of attorney, a health care agent appointed
by an individual under an advance directive pursuant to §54.1-2983 of the Code
of Virginia, a legal guardian of the individual not employed by the provider
and currently authorized to give consent, or, if the individual is a minor, a
parent having legal custody of the individual.
b. The individual''s next of kin. In designating the next of
kin, the director shall select the best qualified person, if available,
according to the following order of priority unless, from all information
available to the director, another person in a lower priority is clearly better
qualified: spouse, an adult child, a parent, an adult brother or sister, any
other relative of the individual. If the individual expresses a preference for
one family member over another in the same category, the director shall appoint
that family member.
c. If no other person specified in subdivisions a and b is
available and willing to serve, a provider may appoint a next friend of the
individual, after a review and finding by the LHRC that the proposed next friend
has shared a residence with or provided support and assistance to the
individual for a period of at least six months prior to the designation, the
proposed next friend has appeared before the LHRC and agreed to accept these
responsibilities, and the individual has no objection to this proposed next
friend being appointed authorized representative.
10. No provider, director, or employee of a provider or
director may serve as legally authorized representative for any individual
receiving services delivered by that provider or director unless the employee
is a relative or legal guardian.
11. If a provider documents that the individual lacks
capacity and no person is available or willing to act as a legally authorized
representative, the provider shall:
a. Attempt to identify a suitable person who would be
willing to serve as guardian and ask the court to appoint said person to
provide consent; or
b. Ask a court to authorize treatment. See §37.1-134.21 of
the Code of Virginia.
12. If the individual who has a legally authorized
representative objects to the disclosure of specific information or a specific
proposed treatment, the director shall immediately notify the human rights
advocate and the legally authorized representative, as applicable. A petition
for a LHRC review may be filed under 12VAC35-115-180.
13. Providers shall make sure that an individual''s capacity
to consent is reviewed at least every six months or as the individual''s
condition warrants according to sound therapeutic practice to assess the continued
need for a surrogate decision-maker. Such reviews, or decisions not to review,
shall be documented in the individual''s services record and communicated in
writing to the surrogate decision-maker. Providers shall also consider an
individual''s request for review in a timely manner.
7. Providers may provide treatment in accordance with a
court order or in accordance with other provisions of law that authorize such
treatment or services including the Health Care Decisions Act (§54.1-2981 et
seq. of the Code of Virginia). The provisions of these regulations are not
intended to be exclusive of other provisions of law but are cumulative (
[ e.g., see ] §54.1-2970 of the Code of Virginia).
14. 8. Providers shall respond to an individual''s
request for discharge [ according to requirements ] set forth
in statute and shall make sure that the individual is not subject to
punishment, reprisal, or reduction in services because he makes a request.
However, if an individual leaves a service "against medical advice,"
any subsequent billing of the individual by his private third party payer shall
not constitute punishment or reprisal on the part of the provider.
a. Voluntary admissions.
(1) Individuals admitted under §37.1-65 §37.2-805
of the Code of Virginia to mental health facilities state hospitals
operated by the department who notify the director of their intent to leave
shall be released discharged when appropriate, but no later than
eight hours after notification, unless another provision of law
authorizes the director to detain retain the individual for a
longer period.
(2) Minors admitted under §16.1-338 or 16.1-339 of the Code of
Virginia shall be released to the parent''s (or legal guardian''s)
custody within 48 hours of the consenting parent''s (or legal guardian''s)
notification of withdrawal of consent, unless a petition for continued
hospitalization pursuant to §16.1-340 or 16.1-345 of the Code of Virginia is
filed.
b. Involuntary commitment admissions.
(1) When a minor involuntarily committed admitted
under §16.1-345 of the Code of Virginia no longer meets the commitment
criteria, the director shall take appropriate steps to arrange the minor''s
discharge.
(2) When an individual involuntarily committed admitted
under §37.1-67.3 §37.2-817 of the Code of Virginia has been
receiving services for more than 30 days and makes a written request for
discharge, the director shall determine whether the individual continues to
meet the criteria for involuntary commitment admission. If the
director denies the request for discharge, he shall notify the individual in
writing of the reasons for denial and of the individual''s right to seek relief
in the courts. The request and the reasons for denial shall be included
in the individual''s services record. Anytime an the individual
meets any of the criteria for discharge set out in §37.1-98 A §37.2-837
or 37.2-838 of the Code of Virginia, the director shall take all necessary
steps to arrange the individual''s discharge.
(3) If at any time it is determined that an individual
involuntarily admitted under Chapter 11 (§19.2-67 et seq.) or Chapter 11.1
(§19.2-182.2 et seq.) of Title 19.2 of the Code of Virginia no longer meets the
criteria upon under which the individual was admitted and
retained, the director shall notify the or commissioner who,
as appropriate, shall seek judicial authorization to discharge or transfer
the individual. Further, pursuant to §19.2-182.6 of the Code of Virginia, the
commissioner shall petition the committing court for conditional or
unconditional release at any time he believes the acquittee no longer needs
hospitalization.
c. Certified admissions. If an individual certified for
admission [ under to a state training center or his authorized
representative requests discharge, the director or his designee shall contact
the individual's community services board to finalize and implement the
discharge plan ] §37.1-65.1 or 37.1-65.3 [ §37.2-806
of the Code of Virginia requests discharge, the director ] will
[ shall determine whether the individual continues to meet the
criteria for ] certification [ admission. If the
director denies the request for discharge, the individual and the individual''s ]
legally [ authorized representative shall be notified in writing
of the reasons for the denial and of the individual''s right to seek
relief in the courts. The request and the reasons for denial ] will
[ shall be included in the individual''s services record ].
C. Exceptions and conditions to the provider''s duties.
1. Providers, in an emergency, may initiate, administer, or undertake
a proposed treatment without the consent of the individual or the individual''s
legally authorized representative. All emergency treatment shall be documented
in the individual''s services record within 24 hours.
a. Providers shall immediately notify the legally
authorized representative, as applicable, of the provision of treatment without
consent during an emergency.
b. Providers shall continue emergency treatment without
consent beyond 24 hours only following a review of the individual''s condition
and if a new order is issued by a professional who is authorized by law and the
provider to order the treatment.
c. Providers shall notify the human rights advocate if
emergency treatment without consent continues beyond 24 hours.
d. Providers shall develop and integrate treatment
strategies to address and prevent future such emergencies to the extent
possible, into the individual''s services plan, following the provision of
emergency treatment without consent.
2. Providers may provide treatment without consent in
accordance with a court order or in accordance with other provisions of law
that authorize such treatment including the Health Care Decisions Act
(§54.1-2981 et seq.). The provisions of these regulations are not intended to
be exclusive of other provisions of law but are cumulative (e.g., see
§54.1-2970 of the Code of Virginia).
Statutory Authority
§§37.2-203 and 37.2-400 of the Code of Virginia.
Historical Notes
Derived from Virginia Register Volume 18, Issue 3, eff. November 21, 2001.
12VAC35-115-80. Confidentiality.
A. Each individual is entitled to have all identifying
information that a provider maintains or knows about him remain confidential.
Each individual has a right to give his consent authorization
before the provider shares identifying information about him or his care
unless another law, federal state law or regulation, or these
regulations specifically require or permit the provider to disclose certain
specific information.
B. The provider''s duties.
1. Providers shall maintain the confidentiality of any
information that identifies an individual receiving services from the
provider. If an individual''s services record pertains in whole or in part
to referral, diagnosis or treatment of substance [ abuse use
disorders ], providers shall release disclose
information only according to applicable federal regulations (see 42 CFR Part
2, Confidentiality of Alcohol and Drug Abuse Patient Records).
2. Providers shall obtain and document in the individual's services record the individual's authorization [ or that of the authorized representative ] prior to disclosing any identifying information about him. The authorization must contain the following elements:
a. The name of the organization and the name or other specific identification of the person or persons or class of persons to whom disclosure is made;
b. A description of the nature of the information to be disclosed, the purpose of the disclosure, and an indication whether the authorization extends to the information placed in the individual's record after the authorization was given but before it expires;
c. An indication of the effective date of the authorization and the date the authorization will expire, or the event or condition upon which it will expire; and
d. The signature of the individual and the date. If the authorization is signed by an authorized representative, a description of the authorized representative's authority to act.
2. 3. Providers shall tell each individual,
and his legally authorized representative if he has one, about
the individual''s confidentiality rights. This shall include how information can
be disclosed and how others might get information about the individual without
his consent authorization. If a disclosure is not required by
law, the [ providers provider ] shall
give strong consideration to any objections from the individual or his
authorized representative in making the decision to disclose information [ (see
Virginia Government Data Collection and Dissemination Practices Act (§2.2-3800
et seq. of the Code of Virginia)) ].
3. 4. Providers shall prevent unauthorized
disclosures of information from services records and shall convey maintain
and disclose [ the ] information in a secure manner.
4. If consent to disclosure is required, providers
shall get the written consent of the individual or the legally authorized
representative, as applicable, before disclosing information. 5. In
the case of a minor, the consent authorization of the custodial
parent or other person authorized to consent to the minor''s treatment under
§54.1-2969 is required, except as provided below:
a. Section 54.1-2969 E of the Code of Virginia permits a minor
to authorize the release disclosure of records information
related to medical or health services for a sexually transmitted or
contagious disease or , family planning but requires
parental consent for release of records related to or pregnancy, and
outpatient care, treatment or rehabilitation for substance use disorders,
mental illness, or emotional disturbance.
b. A minor may authorize the release of outpatient
substance abuse records without parental consent in programs governed by 42 CFR
Part 2 The concurrent authorization of the minor and [ custodial ]
parent is required to disclose inpatient substance abuse records.
c. The minor and the [ custodial ] parent shall authorize the disclosure of identifying information related to the minor's inpatient psychiatric hospitalization when the minor is 14 years of age or older and has consented to the admission.
5. 6. When providers disclose identifying
information, they shall attach a statement that informs the person receiving
the information that it must not be disclosed to anyone else unless the
individual consents authorizes the disclosure or unless the
state law or regulation allows or requires further disclosure
without consent authorization.
6. Upon request, providers shall tell individuals the
sources of information contained in their services records and the names of
anyone, other than employees of the provider, who has received information
about them from the provider. Individuals receiving services should be informed
that the department may have access to their records.
C. Exceptions and conditions to the provider''s duties.
1. 7. Providers may encourage individuals to
name family members, friends, and others who may be told of their presence in
the program and general condition or well-being. Consent must be
obtained and documented in the services record for the provider to contact
family members, friends, or others. Nothing in this provision shall prohibit
providers from taking steps necessary to secure a legally authorized
representative Except for information governed by 42 CFR Part 2,
providers may disclose to a family member, other relative, a close personal
friend, or any other person identified by the individual, information that is
directly relevant to that persons involvement with the individual's care or
payment for his health care, if (i) the provider obtains the individual's
agreement, (ii) the provider provides the individual with the opportunity to
object to the disclosure, and (iii) the individual does not object or the
provider reasonably infers for the circumstances, based or the exercise of
professional judgment, that the individual does not object to the disclosure. If
the opportunity to agree or object cannot be provided because of the
individual's incapacity or an emergency circumstance, the provider may, in the
exercise of professional judgment, determine whether the disclosure is in the best
interest of the individual and, if so, disclose only the information that is
directly relevant to the person's involvement with the individual's health care.
2. 8. Providers may disclose the following identifying
information without consent authorization or violation of the
individual''s confidentiality, but only under the conditions specified in this
subdivision and in subdivision 3 the following subdivisions of this
subsection. Providers should always consult 42 CFR Part 2, Confidentiality of
Alcohol and Drug Abuse Patient Records, if applicable, because these federal
regulations may prohibit some of the disclosures addressed in this section. [ See
also §32.1-127.1:03 of the Code of Virginia for a list of circumstances under
which records may be disclosed without ] consent [ authorization
].
a. Emergencies: Providers may disclose information in an
emergency to any person who needs that particular information for the
purpose of preventing injury [ to ] , or death or
substantial property destruction in an emergency [ of an individual
or other person ]. The provider shall not disclose any information
that is not needed for [ these this ] specific [ purposes
purpose ] .
b. Employees: Providers or health plans: Providers
may disclose to permit any full- or part-time employee,
consultant, agent, or contractor of the provider, to use identifying
information or disclose to another provider, a health plan, the
department, or a CSB, information required to give services to
the individual or to get payment for the services.
c. Insurance companies and other third party payers:
Disclosure may be made to insurance companies and other third party payers
according to Chapter 12 (§37.1-225 et seq.) of Title 37.1 of the Code of
Virginia.
d. c. Court proceedings: If the individual,
or someone acting for him, introduces any aspect of his mental condition
or services as an issue before a court, administrative agency, or medical
malpractice review panel, the provider may disclose any information relevant to
that issue. The provider may also disclose any records if they are properly
subpoenaed, if a court orders them to be produced, or if involuntary commitment
admission or certification for admission is being proposed or
conducted.
e. d. Legal counsel: Providers may disclose
information to their own legal counsel, or to anyone working on behalf
of their legal counsel, in providing representation to the provider.
Providers of state-operated services may disclose information to the Office of
the Attorney General, or to anyone appointed by or working on
behalf of that office, in providing representation to the Commonwealth of Virginia.
f. e. Human rights committees: Providers may
disclose to the LHRC and the SHRC any information necessary for the conduct of
their responsibilities under these regulations.
g. f. Others authorized or required by the
commissioner, CSB, or private program director: Providers may disclose
information to other persons if authorized or required by the commissioner,
CSB or private program director for the following activities:
(1) Licensing, human rights, or certification or accreditation reviews;
(2) Hearings, reviews, appeals, or investigations under these regulations;
(3) Evaluation of provider performance and individual outcomes
(see §37.1-98.2 §§ 37.2-508 and 37.2-608 of the Code of
Virginia);
(4) Statistical reporting;
(5) Preauthorization, utilization reviews, financial and related administrative services reviews, and audits; or
(6) Similar oversight and review activities.
h. g. Preadmission screening, services,
and discharge planning: Providers may disclose to the department, the CSB,
or to other providers information necessary to [ prescreen screen
] individuals [ for admission ] or to prepare and carry out a
comprehensive individualized services or discharge plan (see §37.1-98.2 §37.2-505
of the Code of Virginia).
i. h. Protection and advocacy agency: Providers
may disclose information to the protection and advocacy agency any
information that may establish probable cause to believe that an individual
receiving services has been abused or neglected and any information concerning
the death or serious injury of any individual while receiving services,
whatever the suspected cause of the death in accordance with that
agency's legal authority under federal and state law.
j. i. Historical research: Providers may
disclose information to persons engaging in bona fide historical research if
all of the following conditions are met:
(1) The request for historical research shall include, at a minimum, a summary of the scope and purpose of the research, a description of the product to result from the research and its expected date of completion, a rationale explaining the need to access otherwise private information, and the specific identification of the type and location of the records sought.
(1) (2) The commissioner, CSB executive
director, or private program director authorizes has authorized
the research;
(2) (3) The individual or individuals who are
the subject of the disclosure are deceased;
(3) (4) There are no known living persons authorized
permitted by law to consent to authorize the disclosure;
and
(4) (5) The disclosure would in no way reveal
the identity of any person who is not the subject of the historical research.
k. A request for historical research shall include, at a
minimum:
(1) A summary of the scope and purpose of the research;
(2) A description of the product to result from the
research and its expected date of completion;
(3) A rationale explaining the need to access otherwise
confidential records; and
(4) Specific identification of the type and location of the
records sought.
l. j. Protection of the public safety: If
a provider reasonably believes an individual receiving services is a
present threat to a specifically makes a specific threat to cause
serious bodily injury or death to an identified or readily identifiable
person or the public and the provider reasonably believes that the
individual has the intent and the ability to carry out the threat immediately
or imminently, the provider may communicate only disclose
those facts necessary to alleviate the potential threat.
m. k. Inspector General: Providers may disclose
to the Inspector General any individual services records and other information
relevant to the provider''s delivery of services.
n. l. Virginia Patient Level Data System:
Providers may disclose financial and services information to Virginia Health
Information as required by law (see Chapter 7.2 (§32.1-276.2 et seq.) of Title
32.1 of the Code of Virginia).
m. Psychotherapy notes: Providers shall obtain an individual's authorization for any disclosure of psychotherapy notes, except when disclosure is made:
(1) For the provider''s own training programs in which students, trainees, or practitioners in mental health are being taught under supervision to practice or improve their skills in group, joint, family or individual counseling;
(2) To defend the provider or its employees or staff against any accusation or wrongful conduct;
(3) In discharge of the provider's duty, in accordance with §54.1-2400.1 B of the Code of Virginia, to take precautions to protect third parties from violent behavior or other serious harm;
(4) As required in the course of an investigation, audit, review, or proceeding regarding a provider's conduct by a duly authorized law-enforcement, licensure, accreditation, or professional review entity; or
(5) When otherwise required by law.
[ n. A law-enforcement official:
(1) Pursuant to a search warrant or grand jury subpoena;
(2) In response to their request, for the purpose of identifying or locating a suspect, fugitive, [ an ] individual required to register pursuant to §92.1-901 of the Sex Offender and Crimes Against Minors Registry Act, material witness, or missing person, provided that only the following information is disclosed:
(a) Name and address of the individual;
(b) Date and place of birth of the individual;
(c) Social Security number of the individual;
(d) Blood type of the individual;
(e) Date and time of treatment received by the individual;
(f) Date and time of death of the individual;
(g) Description of distinguishing physical characteristics of the individual; and
(h) Type of injury sustained by the individual.
(3) Regarding the death of an individual for the purpose of alerting law enforcement of the death if the health care entity has a suspicion that such death may have resulted from criminal conduct; or
(4) If the health care entity believes in good faith that the information disclosed constitutes evidence of a crime that occurred on its premises. ]
o. [ n. o. ] Other
statutes or regulations: Providers may disclose information to the extent
required or permitted by any other state or federal statute law
or regulations regulation. [ See also §32.1-127.1:03 of
the Code of Virginia for a list of circumstances in which records may be
disclosed without authorization. ]
3. If information is disclosed without consent to anyone
other than employees of the department, CSB or other provider, providers shall
take the following steps before the disclosure (or, in an emergency, promptly
afterward):
a. Put a written notation of the information disclosed, the
name of the person who received the information, the purpose of disclosure, and
the date of disclosure permanently in the individual''s services record.
b. Give the individual or his legally authorized
representative written notice of the disclosure, including the name of each
person who received the information and the nature of the information.
4. If the disclosure is not required by law, give strong
consideration to any objections from the individual or his legally authorized
representative in making the decision to release information (see Virginia
Government Data Collection and Dissemination Practices Act, §2.2-3800 et seq.
of the Code of Virginia).
9. Upon request, the provider shall tell the individual or his authorized representative the sources of information contained in his services records and provide a written listing of disclosures of information made without authorization, except for disclosures:
a. To employees of the department, CSB, the provider, or other providers;
b. To carry out treatment, payment, or health care operations;
c. That are incidental or unintentional disclosures that occur as a by-product of engaging in health care communications and practices that are already permitted or required;
d. To an individual or his authorized representative;
e. Pursuant to an authorization;
f. For national security or intelligence purposes; [ or ]
g. To correctional institutions or law enforcement
officials [ . ; or
h. That were made more that six years prior to the request. ]
10. The provider shall include the following information in the listing of disclosures of information provided to the individual or his authorized representative under subdivision 9 of this subsection:
a. The name of the person or organization that received the information and the address if known;
b. A brief description of the information disclosed; and
c. A brief statement of the purpose of the disclosure or, in lieu of such a statement, a copy of the written request for disclosure.
11. If the provider makes multiple disclosures of information to the same person or entity for a single purpose, the provider shall include the following:
a. The information required in subdivision 10 of this subsection for the first disclosure made during the requested period;
b. The frequency, periodicity, or number of disclosures made during the period for which the individual is requesting information; and
c. The date of the last disclosure during the time period.
12. [ The provider need not inform an
individual whom it believes to be a victim of abuse or neglect If
the provider makes a disclosure to a social service or protective services
agency about an individual who the provider reasonably believes to be a victim
of abuse or neglect, the provider is not required to inform the individual or
his authorized representative of the disclosure if ] :
a. [ If the The ] provider,
in the exercise of professional judgment, believes that informing the
individual would place the individual at risk of serious harm; or
b. [ If the The ] provider
would [ inform be informing ] the
authorized representative, and the provider reasonably believes that the
authorized representative is responsible for the abuse or neglect [ , ]
and that informing such person would not be in the best [ interest
interests ] of the individual.
Statutory Authority
§§37.2-203 and 37.2-400 of the Code of Virginia.
Historical Notes
Derived from Virginia Register Volume 18, Issue 3, eff. November 21, 2001.
12VAC35-115-90. Access to and correction amendment
of services records.
A. Each individual has a right to see, read, and get a copy
of his own services record. Minors must have their parent or guardian''s
permission first. If this right is restricted according to law, the individual
has a right to let certain other people see his record. Each individual has a
right to challenge, correct or explain anything in his record. Whether or not
corrections are made as a result, each individual has a right to let anyone who
sees his record know that he tried to correct or explain his position and what
happened as a result. An individual''s legally authorized representative has the
same rights as the individual himself has (see §2.2-3806 of the Code of
Virginia). With respect to his own services record, each individual and
his authorized representative has the right to:
1. See, read, and get a copy of his own services record,
[ except psychotherapy notes, ] information that is
privileged pursuant to §8.01-581.17 of the Code of Virginia, and information
compiled by the provider in reasonable anticipation of or for use in a civil,
criminal, or administrative action or proceeding;
2. Let certain other people see, read, or get a copy of his own services record if the individual is restricted by law from seeing, reading, or receiving a copy;
3. Challenge, [ request to ] amend, or receive an explanation of anything in his services record; and
4. Let anyone who sees his record, regardless of whether amendments to the record have been made, know that the individual has tried to amend the record or explain his position and what happened as a result.
B. Except in the following circumstances, minors must have their parent's or guardian's permission before they can access their services record:
1. A minor may access his services record without the permission of a parent only if the records pertain to treatment for sexually transmitted or contagious diseases, family planning or pregnancy, outpatient care, treatment or rehabilitation for substance use disorders, mental illness or emotional disturbance, or inpatient psychiatric hospitalization when a minor is 14 years of age or older and has consented to the admission.
2. A parent may access his minor child's services record unless parental rights have been terminated, a court order provides otherwise, or the minor's treating physician or clinical psychologist has determined, in the exercise of professional judgment, that the disclosure to the parent would be reasonably likely to cause substantial harm to the minor or another person.
B. C. The provider''s duties.
1. Providers shall tell each individual, and his legally
authorized representative if he has one, how he can access and provide
corrections to request amendment of his own services records record.
2. Providers shall permit each individual to see his records
services record when he requests them it and to provide
corrections request amendments if necessary.
a. Access to all or a part of an individual's services record may be denied or limited only if a physician or a clinical psychologist involved in providing services to the individual talks to the individual, examines the services record as a result of the individual's request for access, and signs and puts in the services record permanently a written statement that he thinks access to the services record by the individual at this time would be reasonably likely to endanger the life or physical safety of the individual or another person or that the services record makes reference to a person other than a health care provider and the access requested would be reasonably likely to cause substantial harm to the referenced person. The physician or clinical psychologist must also tell the individual as much about his services record as he can without risking harm to the individual.
b. If access is denied in whole or in part, the provider shall give the individual or his authorized representative a written statement that explains the basis for the denial, the individual's review rights, as set forth in the following subdivisions, how he may exercise them, and how the individual may file a complaint with the provider or the United States Department of Health and Human Services, if applicable. If restrictions or time limits are placed on access, the individual shall be notified of the restrictions and time limits and conditions for their removal. These time limits and conditions also shall be specified in the services record.
(1) If the individual requests a review of denial of access, the provider shall designate a physician or clinical psychologist who was not directly involved in the denial to review the decision to deny access. The physician or clinical psychologist must determine within a reasonable period of time whether or not to deny the access requested in accordance with the standard in subdivision 2 a of this subsection. The provider must promptly provide the individual notice of the physician's or psychologist's determination and provide or deny access in accordance with that determination.
(2) At the individual's option, the individual may designate at his own expense a reviewing physician or clinical psychologist who was not directly involved in the denial to review the decision to deny access in accordance with the standard in subdivision 2 a of this subsection. If the individual chooses this option, the provider is not required to designate a physician or clinical psychologist to review the decision.
c. If the provider limits or refuses to let an individual see his services record, the provider shall also notify the advocate and tell the individual that he can ask to have a lawyer of his choice see his record. If the individual makes this request, the provider shall disclose the record to that lawyer (§8.01-413 of the Code of Virginia).
3. Providers shall, without charge, give individuals any help
they may need to read and understand their services records record
and provide corrections request amendments to them it.
4. If the provider limits or refuses to let an individual
see his services records, the provider shall notify the advocate and tell the
individual that he can ask to have a lawyer, physician, or psychologist of his
choice see his records. If the individual makes this request, the provider
shall disclose the record to that lawyer, physician, or psychologist
(§§2.2-3705, 32.1-127.1:03 and 8.01-413 of the Code of Virginia).
5. The provider shall document in the record the decision
and reasons for the decision to limit or refuse access to the individual''s
medical record. The individual shall be notified of time limits and conditions
for removal of the restriction. These time limits and conditions shall also be
specified in the record.
6. 4. If an individual asks to challenge, correct
amend, or explain any information contained in his services record, the
provider shall investigate and file in the services record a written report
concerning the individual''s request.
a. If the report finds that the services record is incomplete, inaccurate, not pertinent, not timely, or not necessary, the provider shall:
(1) Either mark that part of the services record clearly to
say so, or else remove that part of the services record and file it separately
with an appropriate cross reference to indicate that the information was
removed.;
(2) Not disclose the original services record without separate
specific consent authorization or legal authority (e.g., if
compelled by subpoena or other court order).;
(3) Obtain the individual's identification of and agreement to have the provider notify the relevant persons of the amendment; and
(4) Promptly notify in writing all persons who have
received the incorrect information and all persons identified by the
individual that the services record has been corrected and request that
recipients acknowledge the correction.
b. If the report does not result in action satisfactory to
the individual, the provider shall, upon a request to amend the services
record is denied, the provider shall give the individual a written statement
containing the basis for the denial and notify the individual of his right to
submit a statement of disagreement and how to submit such a statement. The
provider shall also give the individual (i) a statement that if a statement of
disagreement is not submitted that the individual may request the provider to
disclose the request for amendment and the denial with future disclosures of
information and (ii) a description of how the individual may complain to the
provider or the Secretary of Health and Human Services, if applicable. Upon
request, the provider shall file in the services record the individual''s
statement explaining his position. If needed, the provider shall help the
individual to write this statement. If a statement is filed, the provider shall:
(1) Give all persons who have copies of the record a copy of the individual''s statement.
(2) Clearly note in any later disclosure of the record that it is disputed and include a copy of the statement with the disputed record.
C. Exceptions and conditions to the provider''s duties. A
provider may deny access to all or a part of an individual''s services record
only if a physician or a licensed psychologist involved in providing services
to the individual talks to the individual, looks over the services record as a
result of the individual''s request for access, signs and puts in the services
record permanently a written statement that he thinks access to the services
records by the individual at this time would be physically or mentally harmful
to the individual. The physician or licensed psychologist must also tell the
individual as much about his services record as he can without risking harm to
the individual.
Statutory Authority
§§37.2-203 and 37.2-400 of the Code of Virginia.
Historical Notes
Derived from Virginia Register Volume 18, Issue 3, eff. November 21, 2001.
12VAC35-115-100. Restrictions on freedoms of everyday life.
A. From admission until discharge from a service, each individual is entitled to:
1. Enjoy all the freedoms of everyday life that are consistent
with his need for services, his protection, and the protection of others, and
that do not interfere with his services or the services of others. These
freedoms include the following:
a. Freedom to move within the service setting, its grounds,
and the community.;
b. Freedom to communicate, associate, and meet privately with
anyone the individual chooses.;
c. Freedom to have and spend personal money.;
d. Freedom to see, hear, or receive television, radio, books,
and newspapers, whether privately owned or in a library or public area
of the service setting.;
e. Freedom to keep and use personal clothing and other
personal items.;
f. Freedom to use recreational facilities and enjoy the
outdoors.; and
g. Freedom to make purchases in canteens, vending machines, or stores selling a basic selection of food and clothing.
2. Receive services in that setting and under those conditions that are least restrictive of his freedom.
B. The provider''s duties.
1. Providers shall encourage each individual''s participation in normal activities and conditions of everyday living and support each individual''s freedoms.
2. Providers shall not limit or restrict any individual''s freedom more than is needed to achieve a therapeutic benefit, maintain a safe and orderly environment, or intervene in an emergency.
3. Providers shall not impose any restriction on an individual unless the restriction is justified and carried out according to these regulations. If a provider imposes a restriction, except as provided in 12VAC35-115-50, the following conditions shall be met:
a. A qualified professional involved in providing services has, in advance, assessed and documented all possible alternatives to the proposed restriction, taking into account the individual's medical and mental condition, behavior, preferences, nursing and medication needs, and ability to function independently.
b. A qualified professional involved in providing services has, in advance, determined that the proposed restriction is necessary for effective treatment of the individual or to protect him or others from personal harm, injury, or death.
c. A qualified professional involved in providing services has, in advance, documented in the individual's services record the specific reason for the restriction.
d. A qualified professional involved in providing services has explained, so that the individual can understand, the reason for the restriction, the criteria for removal, and the individual's right to a fair review of whether the restriction is permissible.
e. A qualified professional regularly reviews the restriction and that the restriction is discontinued when the individual has met the criteria for removal.
f. If a court has ordered the provider to impose the restriction or if the provider is otherwise required by law to impose the restriction, the restriction shall be documented in the individual's services record.
4. Providers shall make sure that a qualified professional
regularly reviews every restriction and that the restriction is discontinued
when the individual has met the criteria for removal.
5. Providers shall not place any restriction on the physical
or personal freedom of any individual solely because criminal or delinquency
charges are pending against that individual, except in the situation where the
individual is transferred directly from jail or detention for the purpose of
receiving an evaluation or treatment.
C. Exceptions and conditions on the provider''s duties.
1. Except as provided in 12VAC 35-115-50 E, providers may
impose restrictions if a qualified professional involved in providing services
to the individual has, in advance:
a. Assessed and documented all possible alternatives to the
proposed restriction, taking into account the individual''s medical and mental
condition, behavior, preferences, nursing and medication needs, and the ability
to function independently;
b. Determined that the proposed restriction is necessary
for effective treatment of the individual or to protect him or others from
personal harm, injury or death;
c. Documented in the individual''s services record the
specific reason for the restriction; and
d. Explained, so the individual can understand, the reason
for the restriction, the criteria for removal, and the individual''s right to a
fair review of whether the restriction is permissible.
2. Providers may impose a restriction if a court has ordered
the provider to impose the restriction or if the provider is otherwise required
by law to impose such restriction. Such restriction shall be documented in the
individual''s services record.
3. 4. Providers may develop and enforce written program
rules of conduct, but only if the rules do not conflict with these
regulations or any individual''s services plan, and the rules are
needed to maintain a safe and orderly environment.
4. 5. Providers shall, in the development of
these program rules of conduct:
a. Get as many suggestions as possible from all individuals
who are expected to obey the rules.;
b. Apply these rules in the same way to each individual.;
c. Give the rules to and review them with each individual and
his legally authorized representative in a way that the individual can
understand them. This includes explaining possible consequences for
violating the rules., including explaining possible consequences for
violating them;
d. Post the rules in summary form in all areas to which
individuals and their families have regular access.;
e. Submit the rules to the LHRC for review and approval before
putting them into effect, before any changes are made to the rules, and
upon request of the advocate or LHRC.; and
f. Prohibit individuals from disciplining other individuals, except as part of an organized self-government program conducted according to a written policy approved in advance by the LHRC.
Statutory Authority
§§37.2-203 and 37.2-400 of the Code of Virginia.
Historical Notes
Derived from Virginia Register Volume 18, Issue 3, eff. November 21, 2001.
12VAC35-115-110. Use of seclusion, restraint, and time out.
A. Each individual is entitled to be completely free from any
unnecessary use of seclusion, restraint, and or time out.
B. [ The voluntary use of mechanical supports to achieve proper body position, balance, or alignment so as to allow greater freedom of movement or to improve normal body functioning in a way that would not be possible without the use of such a mechanical support, and the voluntary use of protective equipment are not considered restraints.
C. ] The provider''s duties.
1. Providers shall not use seclusion or restraint as
punishment, reprisal, or for the convenience of staff.
2. Providers shall limit each authorization for seclusion or
behavioral restraint to four hours for individuals 18 and older, two hours for
children and adolescents ages 9 to 17, and one hour for children under age 9.
3. Providers shall monitor the combined use of seclusion and
restraint by a continuous face-to-face observation, not solely by an electronic
surveillance device.
4. Providers shall ensure that seclusion and restraint may
only be implemented, monitored, and discontinued by staff who have been trained
in the proper and safe use of seclusion and restraint techniques.
5. Providers shall not utilize seclusion or restraint unless
it is justified and carried out according to these regulations.
a. The justification for any seclusion or restraint
procedure must be documented in the individual''s services plan.
b. The authorization for the use of seclusion or restraint
must be documented in the individual''s services plan and include behavioral
criteria the individual must meet for release.
c. The authorization for the use of seclusion or restraint
must be time-limited. Authorizations for the use of seclusion or restraint
procedures may not be given on an as needed basis.
d. The authorizing professional must document that he has
taken into account any physical or psychological conditions that would place
the individual at greater risk during restraint or seclusion.
6. Providers shall make sure that a qualified professional
regularly reviews every use of seclusion or restraint and that the procedure is
discontinued when the individual has met the criteria for removal.
7. Providers shall not use seclusion or restraint solely
because criminal or delinquency charges are pending against the individual.
8. Providers who use seclusion or restraint shall develop
written seclusion and restraint policies and procedures that comply with
applicable federal and state statutes and regulations, accreditation standards,
third party payer requirements, and sound therapeutic practice. These policies
and procedures shall include the following requirements at a minimum:
a. Providers shall submit all proposed seclusion and
restraint policies and procedures to the LHRC for review and comment before
they are implemented, when changes are proposed, and upon request by the human
rights advocate or the LHRC. The SHRC may request these policies and procedures
be transmitted to the SHRC for review.
b. Providers shall make sure that each individual who
requires seclusion or restraint is given the opportunity for motion and
exercise, to eat at normal meal times and take fluids, to use the restroom, and
bathe as needed.
c. Providers shall make sure that the medical and mental
condition of each individual in seclusion or restraint is continuously
monitored by trained, qualified staff for the duration of the restriction.
d. Each use of seclusion or restraint shall end immediately
when criteria for removal is met.
e. Incidents of seclusion and restraint, including the
rationale, type and duration of the restraint, shall be reported to the
department as provided in 12VAC35-115-230.
9. Providers shall not consider the use of seclusion or restraint
unless other less restrictive techniques have been considered and documented in
the individual''s services plan to demonstrate that these less restrictive
techniques did not or would not succeed in reducing or eliminating behaviors
that are self-injurious or dangerous to other people.
10. Only inpatient hospital settings and residential
facilities for children or adolescents licensed under the Mandatory
Certification/Licensure Standards for Treatment Programs for Residential
Facilities for Children (12VAC35-40-10 et seq.) of the Standards for
Interdepartmental Regulation of Children''s Residential Facilities
(22VAC42-10-10 et seq.) may use seclusion.
11. Providers shall comply with all applicable state and
federal laws and regulations, accreditation standards, and third party payer
requirements as they relate to seclusion and restraint. Whenever an
inconsistency exists between these regulations and federal regulations,
accreditation standards, or the requirements of third party payers, the
provider will be held to the higher standard.
12. Providers shall notify the department whenever a
regulatory or accreditation agency or third party payer identifies problems in
the provider''s compliance with any applicable seclusion or restraint standard.
13. Providers shall ensure that no individual is in time out
for more than 30 minutes per episode and that the instruction to the individual
to move or remain in the alternative location may not take the form of a
threat.
14. Providers shall ensure that isolated time out as defined
by the U.S. Health Care Financing Administration (HCFA) may be used only in
compliance with HCFA requirements. Isolated time out may only be used as part
of a behavioral treatment program that has been approved by the LHRC and
incidents of isolated time out shall be limited to one hour.
C. Exceptions and conditions on the provider''s duties.
1. Providers who use seclusion and restraint may impose
seclusion or restraint in an emergency, but only to the extent necessary to
stop the emergency and only if:
a. Less restrictive measures have been exhausted; or
b. The emergency is so sudden that no less restrictive
measure is possible.
2. Providers who use seclusion and restraint may use
seclusion or restraint if a qualified professional involved in providing
services to the individual has, in advance:
a. Assessed and documented why alternatives to the proposed
use of seclusion or restraint have not been successful in changing the behavior
or not attempted, taking into account the individual''s medical and mental
condition, behavior, preferences, nursing and medication needs, and ability to
function independently;
b. Determined that the proposed seclusion or restraint is
necessary for effective treatment of the individual or to protect him or others
from personal harm, injury, or death;
c. Documented in the individual''s service record the
specific reasons for the seclusion or restraint; and
d. Explained, so that the individual can understand, the
reason for using restraint or seclusion, the criteria for its removal, the
individual''s right to a fair review of whether the restriction is permissible.
3. Providers who use seclusion and restraint may use
restraint or seclusion in a behavioral treatment plan, but only if the plan has
been developed according to policies and procedures. All plans involving the
use of restraints for behavioral purposes and all plans involving the use of
seclusion shall be reviewed in advance by the LHRC. Such procedures shall ensure
that:
a. Plans are initiated, developed, carried out, and
monitored by professionals who are qualified by expertise, training, education
or credentials.
b. Individual plans are submitted to and approved by an
independent review committee, comprised of professionals with training and
experience in applied behavior analysis, which shall assess the technical
adequacy of the plan and data collection procedures; and the LHRC, which shall
review the plans to ensure that the rights of the individuals are protected.
All approvals shall be documented in the individual''s services record before
implementation.
c. Information about the individual plans or aggregate data
about all plans is available anytime:
(1) Upon request by the human rights advocate, the LHRC, the
SHRC, the Inspector General, and the department; and
(2) According to relevant reporting requirements.
d. Seclusion and restraint shall only be included in plans:
(1) To address behaviors that present an immediate danger
to the individual or others, but only after it has been demonstrated by a
detailed and systematic analysis of the behavior itself and the situations in
which the behavior occurs. Providers shall document the lack of success or of
probable success of less restrictive procedures attempted and that the risks
associated with not treating the behavior are greater than any risks associated
with the use of restraint or seclusion.
(2) After review by the LHRC. If the LHRC finds that a
behavioral treatment plan that utilizes seclusion or restraint violates or has
the potential to violate the rights of the individual, the LHRC will notify and
make recommendations to the director.
(3) If the plans include nonrestrictive procedures and
environmental modifications that address the targeted behavior.
e. Plans that include the use of seclusion and restraint
shall also be reviewed quarterly by the independent review committee and by the
LHRC to assess if the use of restrictions has resulted in improvements in
functioning.
4. Providers may use time out, but only according to
policies and procedures that comply with sound therapeutic practice. These
policies and procedures shall be documented in the individual''s services plan
with the justification and purpose for using time out instead of other less
restrictive techniques.
1. Providers shall meet with the individual or his
authorized representative upon admission to [ the service to ]
discuss [ the individual's and document in the
individual's services record, his ] preferred interventions
[ should it become necessary to use in the event his
behaviors or symptoms become a danger to himself or others and under what
circumstances, if any, the intervention may include ] seclusion,
restraint, or time out.
2. Providers shall document [ in the individual's
services record ] all known contraindications to the use of
seclusion, time out, or any form of physical or mechanical restraint, including
medical contraindications and a history of trauma [ , in the
individual's services record and the record and ] shall
[ be flagged flag the record ] to alert and
communicate this information to staff.
3. Only residential facilities for children that are licensed under the Regulations for Providers of Mental Health, Mental Retardation, and Substance Abuse Residential Services for Children (12VAC35-45) and inpatient hospitals may use seclusion and only in an emergency.
4. Providers shall not use seclusion, restraint, or time out as a punishment or reprisal or for the convenience of staff.
5. Providers shall not use seclusion or restraint solely because criminal charges are pending against the individual.
6. Providers shall not use seclusion or restraint for any behavioral, medical, or protective purpose unless other less restrictive techniques have been considered and documentation is placed in the individual's services plan that these less restrictive techniques did not or would not succeed in reducing or eliminating behaviors that are self-injurious or dangerous to other people or that no less restrictive measure was possible in the event of a sudden emergency.
7. Providers that use seclusion, restraint, or time out
shall develop written policies and procedures that comply with applicable
federal and state [ statutes laws ] [ ,
regulation and regulations ], accreditation, [ or
and ] certification standards, third party payer requirements, and
sound therapeutic practice. These policies and procedures shall include at
least the following requirements:
a. Individuals shall be given the opportunity for motion and exercise, to eat at normal meal times and take fluids, to use the restroom, and to bathe as needed.
b. Trained, qualified staff [ monitors
shall monitor ] the individual's medical and mental condition
continuously [ for the duration of while ] the
restriction [ is being used ].
c. Each use of seclusion, restraint, or time out shall end immediately when criteria for removal are met.
d. Incidents of seclusion and restraint, including the rationale for and the type and duration of the restraint [ , ] are reported to the department as provided in 12VAC35-115-230 C.
8. Providers shall submit all proposed seclusion, restraint, and time out policies and procedures to the LHRC for review and comment before implementing them, when proposing changes, or upon request of the human rights advocate, the LHRC, or the SHRC.
9. Providers shall comply with all applicable state and federal laws and regulations, certification and accreditation standards, and third party requirements as they relate to seclusion and restraint.
a. Whenever an inconsistency exists between these regulations and federal [ laws or ] regulations, accreditation or certification standards, or the requirements of third party payers, the provider shall comply with the higher standard.
b. Providers shall notify the department whenever a regulatory, accreditation, or certification agency or third party payer identifies problems in the provider's compliance with any applicable seclusion and restraint standard.
10. Providers shall ensure that only staff who have been trained in the proper and safe use of seclusion, restraint, and time out techniques may initiate, monitor, and discontinue their use.
11. Providers shall ensure that a qualified professional who
is involved in providing services to the individual reviews every use of
[ any physical ] restraint as soon as
possible after it is carried out [ and document the results of his
review in the individual's services record ].
12. Providers shall ensure that review and approval by a
qualified professional for the use or continuation of restraint [ for
medical or protective purposes ] is documented in the individual's
services record. [ Approval for the use of restraint may not be
given on an as needed basis. ] Documentation includes:
a. Justification for any restraint;
b. Time-limited approval for the use or continuation of restraint; and
c. Any physical or psychological conditions that would place the individual at greater risk during restraint.
13. Providers may use seclusion or mechanical restraint for
behavioral purposes [ only ] in an emergency
[ and ] only if a qualified professional involved in
providing services to the individual has, within one hour of the initiation of
the procedure:
a. Conducted a face-to-face assessment of the individual
placed in seclusion or mechanical restraint and documented [ why
that ] alternatives to the proposed use of seclusion [ and
or ] mechanical restraint have not been successful in changing the
behavior or were not attempted, taking into account the individual's medical
and mental condition, behavior, preferences, nursing and medication needs, and
ability to function independently;
b. Determined that the proposed seclusion or mechanical restraint is necessary to protect the individual or others from harm, injury, or death;
c. Documented in the individual's services record the specific reason for the seclusion or mechanical restraint;
d. Documented in the individual's services record the behavioral criteria that the individual must meet for release from seclusion or mechanical restraint; and
e. Explained to the individual, in a way that he can
understand, the reason for using mechanical restraint or seclusion, the
criteria for its removal, and the individual's right to a fair review of
whether the mechanical restraint or seclusion [ is
was ] permissible.
14. Providers shall limit each approval for restraint for behavioral purposes or seclusion to four hours for individuals age 18 and older, two hours for children and adolescents ages 9 through 17, and one hour for children under age nine.
[ 15. Providers shall not issue standing orders for the use of seclusion or restraint for behavioral purposes. ]
[ 15. 16. ] Providers shall
[ limit each approval for ensure that no individual is in ]
time out [ to no for ] more than 30
minutes [ per episode ].
[ 16. 17. ] Providers shall
monitor the use of restraint for behavioral purposes or seclusion through
continuous face-to-face observation, rather than by an electronic surveillance
device.
[ 17. 18. ] Providers may use
restraint or time out in a behavioral treatment plan to address behaviors that
present an immediate danger to the individual or others, but only after a
qualified professional has conducted a detailed and [ systemic
analysis systematic assessment ] of the behavior and the
situations in which the behavior occurs.
a. Providers shall develop any behavioral treatment plan involving the use of restraint or time out for behavioral purposes according to its policies and procedures, which ensure that:
(1) Behavioral treatment plans are initiated, developed, carried out, and monitored by professionals who are qualified by expertise, training, education, or credentials to do so.
(2) Behavioral treatment plans include nonrestrictive procedures and environmental modifications that address the targeted behavior.
(3) Behavioral treatment plans are submitted to and approved by an independent review committee comprised of professionals with training and experience in applied behavior analysis who have assessed the technical adequacy of the plan and data collection procedures.
b. Providers shall document in the individual's services record that the lack of success, or probable success, of less restrictive procedures attempted and the risks associated with not treating the behavior are greater than any risks associated with the use of restraint.
c. Prior to the implementation of any behavioral treatment plan involving the use of restraint or time out, the provider shall obtain approval of the LHRC. If the LHRC finds that the plan violates or has the potential to violate the rights of the individual, the LHRC shall notify and make recommendations to the director.
d. Behavioral treatment plans involving the use of restraint or time out shall be reviewed quarterly by the independent review committee and by the LHRC to determine if the use of restraint has resulted in improvements in functioning of the individual.
[ 18. 19. ] Providers may not
use seclusion in a behavioral treatment plan.
Statutory Authority
§§37.2-203 and 37.2-400 of the Code of Virginia.
Historical Notes
Derived from Virginia Register Volume 18, Issue 3, eff. November 21, 2001.
12VAC35-115-120. Work.
A. Individuals have a right to engage or not engage in work or work-related activities consistent with their service needs while receiving services. Personal maintenance and personal housekeeping by individuals receiving services in residential settings are not subject to this provision.
B. The provider''s duties.
1. Providers shall not require, entice, persuade, or permit any individual or his family member to perform labor for the provider as a condition of receiving services. If an individual voluntarily chooses to perform labor for the provider, the labor must be consistent with his individualized services plan. All policies and procedures, including pay, must be consistent with the Fair Labor Standards Act (29 USC §201 et seq.).
2. Providers shall consider individuals who are receiving services for employment opportunities on an equal basis with all other job applicants and employees according to the Americans with Disabilities Act (42 USC §12101 et seq.).
3. Providers shall give individuals and employers information, training, and copies of policies affecting the employment of individuals receiving services upon request.
4. If vocational training, extended employment services, or supportive
supported employment services are offered, providers shall establish
procedures for documenting the decision on employment and training and the
methodology for establishing [ consumer ] wages. Providers
shall give a copy of the procedures and information about possible consequences
for violating the procedures to all individuals and their legally
authorized representatives.
5. Providers who employ individuals receiving services shall not deduct the cost of services from an individual''s wages unless ordered to do so by a court.
6. Providers shall not sell to or purchase goods or services from an individual receiving services except through established governing body policy that is consistent with U.S. Department of Labor standards.
Statutory Authority
§§37.2-203 and 37.2-400 of the Code of Virginia.
Historical Notes
Derived from Virginia Register Volume 18, Issue 3, eff. November 21, 2001.
12VAC35-115-130. Research.
A. Each individual has a right to choose to participate or not participate in human research.
B. The provider''s duties.
1. Providers shall get obtain prior, written,
informed consent of the individual or his legally authorized
representative before any individual begins to participate in human research unless
the research is exempt under §32.1-162.17 of the Code of Virginia.
2. Providers shall comply with all other applicable state and
federal laws and regulations regarding human research, including the provisions
under Chapter 5.1 (§32.1-162.16 et seq.) of Title 32.1 of the Code of Virginia
and the regulations promulgated adopted under that statute
§37.2-402 of the Code of Virginia.
3. Providers shall solicit consultation and obtain
review by and approval from an institutional review board or
research review committee prior to participation performing or
participating in [ a ] human research protocol.
[ Documentation of this review and approval shall be maintained and
made available on request by the individual or his authorized representative. ]
4. [ All providers shall inform the ] Local
Human Rights Committee [ LHRC before an individual receiving
services may participate in any human research project and provide periodic
updates on the status of the individual''s participation to the committee Prior
to participation by individuals in any human research project, the provider
shall inform and provide a copy of the institutional review board or research
review committee approval to the LHRC. Once the research has been initiated,
the provider shall update the LHRC periodically on the status of the
individual's participation ].
Statutory Authority
§§37.2-203 and 37.2-400 of the Code of Virginia.
Historical Notes
Derived from Virginia Register Volume 18, Issue 3, eff. November 21, 2001.
12VAC35-115-140. Complaint and fair hearing.
A. Each individual has a right to:
1. Complain that his the provider has violated
any of the rights assured under these regulations.;
2. Have a timely and fair review of any complaint according to
the procedures in Part IV V (12VAC35-115-150 et seq.) of this
chapter.;
3. Have someone file a complaint on his behalf.;
4. Use these and other complaint procedures.; and
5. Complain under any other applicable law, including complain to the protection and advocacy agency.
B. The provider''s duties.
1. If an individual makes a complaint, his the
provider shall make every attempt to resolve the complaint to the
individual''s satisfaction at the earliest possible step.
2. Providers shall not take, threaten to take, permit, or condone any action to retaliate against anyone filing a complaint or prevent anyone from filing a complaint or helping an individual to file a complaint.
3. Providers shall assist the complainant in understanding the
full complaint process of complaint, the options for resolution including
the formal and informal processes, and the confidentiality elements of
confidentiality involved.
Statutory Authority
§§37.2-203 and 37.2-400 of the Code of Virginia.
Historical Notes
Derived from Virginia Register Volume 18, Issue 3, eff. November 21, 2001.
Part IV
Complaint Resolution, Hearing, and Appeal Procedures Substitute
Decision Making
12VAC35-115-145. Determination of capacity to give consent or authorization.
[ A. ] If the capacity of an
individual to consent to treatment, services, or research, or authorize the
disclosure of information is in doubt, the provider shall obtain an evaluation
from a professional who is qualified by expertise, training, education, or
credentials and not directly involved with the individual to determine whether
the individual has capacity to consent or to authorize the disclosure of
information.
1. Capacity evaluations shall be obtained for all
individuals who may lack capacity, even if they [ requested
request ] that an authorized representative be designated or agree
to submit to a recommended course of treatment.
2. In conducting this evaluation, the professional may seek
comments from [ a representative representatives ]
accompanying the individual pursuant to 12VAC35-115-70 A 4 about the
individual's capacity to consent or [ to ] authorize
disclosure.
3. Providers shall determine the need for an evaluation of an individual's capacity to consent or authorize disclosure of information and the need for a substitute decision maker whenever the individual's condition warrants, the individual requests such a review, at least every six months, and at discharge, except for individuals receiving acute inpatient services.
a. If the individual's record indicates that the individual is not expected to obtain or regain capacity, the provider shall document annually that it has reviewed the individual's capacity to make decisions and whether there has been any change in that capacity.
b. Providers of acute inpatient services shall determine
the need for an evaluation of an individual's capacity to consent or authorize
disclosure of information whenever the individual's condition warrants or at
least at every treatment team meeting. Results of such reviews shall be
documented in the treatment team notes and communicated to the individual and
[ the his ] authorized representative.
4. Capacity evaluations shall be conducted in accordance
with accepted standards of professional practice and shall indicate the
specific type [ or level ] of decision for which
the individual's capacity is being evaluated (e.g., medical [ ,
treatment planning ] ) and shall indicate what specific type of
decision the individual has or does not have the capacity to make. [ Capacity
evaluations shall address the type of supports that might be used to increase
the individual's decision-making capabilities. ]
5. If the individual or his family objects to the results of the qualified professional's determination, the provider shall immediately inform the human rights advocate.
a. If the individual or family member wishes to obtain an independent evaluation of the individual's capacity, he may do so at his own expense and within reasonable timeframes consistent with his circumstances. If the individual or family member cannot pay for an independent evaluation, the individual may request that the LHRC consider the need for an independent evaluation pursuant to 12VAC35-115-200 B. The provider shall take no action for which consent or authorization is required, except in an emergency, pending the results of the independent evaluation. The provider shall take no steps to designate an authorized representative until the independent evaluation is complete.
b. If the independent evaluation is consistent with the provider's evaluation, the provider's evaluation is binding, and the provider shall implement it accordingly.
c. If the independent evaluation is not consistent with the provider's evaluation, the matter shall be referred to the LHRC for review and decision under 12VAC35-115-200 through 12VAC35-115-250.
Statutory Authority §§37.2-203 and 37.2-400 of the Code of Virginia.
§of the Code of Virginia.
Historical Notes
Derived from Virginia Register Volume , Issue , eff. Month dd, yyyy.
12VAC35-115-146. Authorized representatives.
A. When it is determined in accordance with 12VAC35-115-145 that an individual lacks the capacity to consent or authorize the disclosure of information, the provider shall recognize and obtain consent or authorization for those decisions for which the individual lacks capacity from the following [ if available ]:
1. An attorney-in-fact who is currently empowered to consent or authorize the disclosure under the terms of a durable power of attorney;
2. A health care agent appointed by the individual under an advance directive or power of attorney in accordance with the laws of Virginia; or
3. A legal guardian of the individual, or if the individual is a minor, a parent with legal custody of the minor or other person authorized to consent to treatment pursuant to §54.1-2969 A of the Code of Virginia.
B. If an attorney-in-fact, health care agent or legal guardian is not available, the director shall designate a substitute decision maker as authorized representative in the following order of priority:
1. The individual's family member. In designating a family
member, the director shall [ select the best qualified person,
if available, according to the following order of priority unless, from all
information available to the director, another person in a lower priority is
clearly better qualified. The director shall ask the individual and if the
individual expresses a preference for one family member over another in the
same category, the director shall designate that family member, unless there is
a compelling clinical reason not to do so honor the individual's
preference unless doing so is clinically contraindicated.
a. If the director does not appoint the family member chosen by the individual, the individual shall be told of the reasons for the decision and information about how to request LHRC review according to 12VAC35-115-200.
b. If the individual does not have a preference or if the director does not honor the individual's preference in accordance with these regulations, the director shall select the best qualified person, if available, according to the following order of priority unless, from all information available to the director, another person in a lower priority is clearly better qualified. ]
[ a. (1) ] A spouse;
[ b. (2) ] An adult child;
[ c. (3) ] A parent;
[ d. (4) ] An adult brother
or sister; or
[ e. (5) ] Any other
relative of the individual.
2. Next friend of the individual. If no other person specified above is available and willing to serve as authorized representative, a provider may designate a next friend of the individual, after a review and finding by the LHRC that the proposed next friend has, for a period of six months within two years prior to the designation either:
a. Shared a residence with the individual; or
b. Had regular contact or communication with the individual and provided significant emotional, personal, financial, spiritual, psychological, or other support and assistance to the individual.
3. In addition to the conditions set forth in subdivision 2 of this subsection, the individual must have no objection to the proposed next friend being designated as the authorized representative.
4. The person designated as next friend also shall:
a. Personally appear before the LHRC, unless the LHRC has waived the personal appearance; and
b. Agree to accept these responsibilities and act in the individual's best interest and in accordance with the individual's preferences, if known.
5. The LHRC shall have the discretion to waive a personal appearance by the proposed next friend and to allow that person to appear before it by telephone, video, or other electronic means of communication as the LHRC may deem appropriate under the circumstances. Waiving the personal appearance of the proposed next friend should be done in very limited circumstances.
6. If, after designation of a next friend, an appropriate family member becomes available to serve as authorized representative, the director shall replace the next friend with the family member.
C. No director, employee, or agent of a provider may serve as an authorized representative for any individual receiving services delivered by that provider unless the authorized representative is a relative or the legal guardian When a provider, or the director, an employee, or agent of the provider is also the individual's guardian, the provider shall assure that the individual's preferences are included in the services plan and that the individual can make complaints about any aspect of the services he receives.
D. The provider shall document the recognition or designation of an authorized representative in the individual's services record, including evidence of consultation with the individual about his preference, copies of applicable legal documents such as the durable power of attorney, advance directive, or guardianship order, names and contact information for family members, and, when there is more than one potential family member available for designation as authorized representative, the rationale for the designation of the particular family member as the authorized representative.
E. If a provider documents that the individual lacks capacity to consent and no person is available or willing to act as an authorized representative, the provider shall:
1. Attempt to identify a suitable person who would be willing to serve as guardian and ask the court to appoint that person to provide consent or authorization; or
2. Ask a court to authorize treatment (See §37.2-1101 of the Code of Virginia).
F. Court orders authorizing treatment shall not be viewed as substituting or eliminating the need for an authorized representative.
1. Providers shall review the need for court-ordered treatment and determine the availability of and seek an authorized representative whenever the individual's condition warrants, the individual requests such a review, or at least every six months except for individuals receiving acute inpatient treatment.
2. Providers of acute inpatient services shall review the need for court-ordered treatment and determine the availability of and seek an authorized representative whenever the individual's condition warrants or at least at every treatment team meeting. All such reviews shall be documented in the individual's services record and communicated to the individual.
3. When the provider recognizes or designates an authorized representative, the provider shall notify the court that its order is no longer needed and shall immediately suspend its use of the court order.
G. Conditions for removal of an authorized representative.
Whenever an individual has regained capacity to consent as indicated by a
capacity evaluation or clinical determination, the director shall immediately
remove any authorized representative designated pursuant to subdivision B 1 or
2 of this section, notify the individual and the authorized representative, and
ensure that the services record reflects that the individual is capable of
making his own decisions. Whenever an individual with an authorized
representative who is his legal guardian has regained his capacity to give
informed consent, the director [ shall may ]
use the applicable statutory provisions to remove the authorized
representative. (See §37.2-1012 of the Code of Virginia.) [ Powers
If powers ] of attorney and health care agents' powers [ should
do not ] cease of their own accord when a clinician has determined
that the individual is no longer incapacitated [ , the director
shall seek the consent of the individual and remove the person as authorized
representative ].
1. The director shall remove the authorized representative
designated pursuant to subdivision B 1 or 2 of this section if the authorized
representative becomes unavailable, unwilling, or unqualified to serve. The
individual or the advocate may [ appeal request the
LHRC to review ] the director's decision to remove an authorized
representative [ to the LHRC ] under the
procedures set out at 12VAC35-115-180, and the LHRC may reinstate the
authorized representative if it determines that the director's action was
unjustified.
2. Prior to any removal under this authority, the director shall notify the individual of the decision to remove the authorized representative, of his right to request that the LHRC review the decision, and of the reasons for the removal decision. This information shall be placed in the individual's services record. If the individual requests, the director shall provide him with a written statement of the facts and circumstances upon which the director relied in deciding to remove the authorized representative.
The LHRC may recommend the removal of a next friend pursuant to 12VAC35-115-200 when the next friend is not acting in accordance with the individual's best interest.
3. The director may otherwise seek to replace an authorized representative recognized pursuant to this section who is an attorney-in-fact currently authorized to consent under the terms of a durable power of attorney, a health care agent appointed by an individual under an advance directive, a legal guardian of the individual, or, if the individual is a minor, a parent with legal custody of the individual, only by a court order under applicable statutory authority.
Statutory Authority §§ 37.2-203 and 37.2-400 of the Code of Virginia.
Historical Notes
Derived from Virginia Register Volume , Issue , eff. Month dd, yyyy.
12VAC35-115-150. General provisions.
A. The parties to any complaint are the individual and the
director. Each party can also have anyone else to represent him during resolution
of the complaint resolution. [ The director shall make every
effort to resolve the complaint at the earliest possible stage. ]
B. Meetings, reviews, and hearings will generally be closed to other people unless the individual making the complaint requests that other people attend or if an open meeting is required by the Virginia Freedom of Information Act (§2.2-3700 et seq. of the Code of Virginia).
1. The LHRC and SHRC may conduct a closed hearing to protect
the confidentiality of persons who are not a party to the complaint, but only
if a closed meeting is otherwise allowed under the Virginia Freedom of
Information Act (§2.2-3700 et seq. see §2.2-3711 of the Code of
Virginia).
2. If any person alleges that implementation of an LHRC recommendation would violate the individual''s rights or those of other individuals, the person may file a petition for a hearing with the SHRC, according to 12VAC35-115-210.
C. In no event shall a pending hearing, review, or appeal prevent a director from taking corrective action based on the advice of the provider''s legal counsel that such action is required by law or he otherwise thinks such action is correct and justified.
D. The LHRC or SHRC, on the motion of any party or on its own
motion, may, for good cause, extend any time periods either before or
after the expiration of that time period. No director may extend any time
periods for any actions he is required to take under these procedures without
prior approval of the LHRC or SHRC.
E. Except in the case of emergency proceedings, if a time period in which action must be taken under this part is not extended by the LHRC or SHRC, the failure of a party to act within that time period shall waive that party''s further rights under these procedures.
F. In making their recommendations regarding complaint resolution, the LHRC and the SHRC shall identify any rights or regulations that the provider violated and any policies, practices, or conditions that contributed to the violations. They shall also recommend appropriate corrective actions, including changes in policies, practices, or conditions, to prevent further violations of the rights assured under these regulations.
G. If it is impossible to carry out the recommendations of the LHRC or the SHRC within a specified time, the LHRC or the SHRC, as appropriate, shall recommend any necessary interim action that gives appropriate and possible immediate remedies.
H. Any action plan submitted by the director or commissioner
in the course of these proceedings shall fully address both final and
interim recommendations made by the LHRC or the SHRC and identify financial or
other constraints, if any, which that prevent efforts to fully
remedy the violation.
[ I. All communication with the individual during the complaint resolution process shall be in the manner, format, and language most easily understood by the individual. ]
Statutory Authority
§§37.2-203 and 37.2-400 of the Code of Virginia.
Historical Notes
Derived from Virginia Register Volume 18, Issue 3, eff. November 21, 2001.
12VAC35-115-160. Informal complaint process. (Repealed.)
A. Step 1. Anyone who believes that a provider has violated
an individual''s rights under these regulations may report the alleged violation
to the director or the director''s designee.
B. Step 2. The director or his designee shall attempt to
resolve the complaint immediately. If the complaint is resolved to the
individual''s or legally authorized representative''s satisfaction, no further
action is required.
C. Step 3. The director or his designee shall refer any
complaint that is not resolved to the individual''s or legally authorized
representative''s satisfaction, within five working days, to the human rights
advocate per 12VAC35-115-170.
D. Step 4. If the individual or his legally authorized
representative, as applicable, is not satisfied with the resolution then the
director or the director''s designee shall immediately notify the human rights
advocate per 12VAC35-115-170.
E. The individual or the legally authorized representative,
as applicable, may contact the human rights advocate at any time to pursue a
formal complaint per 12VAC35-115-170.
F. The human rights advocate shall have access to
information regarding all informal complaints upon request.
G. Complaints made under this section will not be reported
to the department under 12VAC35-115 230.
Statutory Authority
§§37.1-10 and 37.1-84.1 of the Code of Virginia.
Historical Notes
Derived from Virginia Register Volume 18, Issue 3, eff. November 21, 2001.
12VAC35-115-170. Formal [ complaint Complaint ]
resolution process.
A. The following steps apply if:
1. The informal complaint process did not resolve the
complaint to the individual''s satisfaction within five working days; or
2. The individual chooses to not pursue the informal
complaint process.
B. Step 1: A. Anyone who believes that a
provider has violated an individual''s rights under these regulations may report
it to the director and or the human rights advocate, or either
of them, for resolution.
1. If the report is made only to the director or his
designee, the director or his designee shall immediately notify the
human rights advocate. If the report is made on a weekend or holiday, then the
director or his designee shall notify the human rights advocate on the next
business day.
2. If the report is made only to the human rights advocate, the
human rights advocate shall immediately notify the director or his designee.
If the report is made on a weekend or holiday, then the human rights advocate
shall notify the director or his designee on the next business day. The
human rights advocate or the director or his designee shall notify the
individual of his right to pursue his complaint through all available means
under this part.
3. If the human rights advocate concludes, after an initial
investigation, that there is substantial risk that serious and irreparable harm
will result if the complaint is not resolved immediately, the human rights
advocate shall inform the director, the provider, the provider''s governing
body, and the LHRC. Steps 2 through 6 below shall not be followed. Instead, the
LHRC shall conduct a hearing according to the special procedures for emergency
hearings in 12VAC35-115-190.
3. The human rights advocate or [ the ] director or his designee shall discuss the report with the individual and notify the individual of his right to pursue a complaint through the process established in these regulations. [ The steps in the informal and formal complaint process established in these regulations shall be thoroughly explained to the individual. The human rights advocate or the director or his designee shall ask the individual if he understands the complaint process and the choice that he has before asking the individual how he wishes to pursue the complaint. ] The individual shall [ then ] be given the choice of pursuing the complaint through the informal or formal complaint process. If the individual does not make a choice, the complaint shall be managed through the informal process.
4. The following steps apply if the complaint is pursued through the informal process:
Step 1: The director or his designee shall attempt to resolve the complaint immediately. If the complaint is resolved, no further action is required.
Step 2: If the complaint is not resolved within five working days, the director or his designee shall refer it for resolution under the formal process. The individual may extend the informal process five-day time frame for good cause. All such extensions shall be reported to the human rights advocate by the director or his designee.
5. The following steps apply if the complaint is pursued through the formal process:
C. Step 2 Step 1: The director or his designee
shall try to resolve the complaint by meeting within 24 hours of receipt of
the complaint with the individual, any representative the individual
chooses, the human rights advocate, and others as appropriate, and by
conducting an investigation if necessary within 24 hours of receipt of
the complaint or the next business day if that day is a weekend or holiday.
The director or his designee shall conduct an investigation of the
complaint, if necessary.
D. Step 3 Step 2: The director or his designee
shall give the individual and his chosen representative a written preliminary
decision and, where appropriate, an action plan for resolving the
complaint within 10 working days of receiving the complaint. Along with
the action plan, the director shall provide written notice to the individual
about the time frame for the individual's response pursuant to Step 3 of this
subdivision [ , information on how to contact the human rights
advocate for assistance with the process, ] and a statement the
complaint will be closed if the individual does not respond.
E. Step 4 Step 3: If the individual is not
satisfied at this step disagrees with the director's preliminary
decision or action plan, he can respond to the director in writing within 5
five working days after receiving the director''s or the designee''s
written preliminary decision and action plan. If the individual
has not responded within five working days, the complaint will be closed.
F. Step 5 Step 4: If the individual disagrees
with the preliminary decision or action plan [ and reports his
disagreement to the director in writing within five working days after
receiving the decision or action plan ], The the director
shall investigate further as appropriate and shall make a final decision
regarding the complaint. The director shall forward a written copy of his final
decision and action plan to the individual, his chosen representative, and the
human rights advocate within 10 five working days after the
director received receives the individual''s written response. Along
with the action plan, the director shall provide written notice to the
individual about the time frame for the individual's response pursuant to Step
5 of this subdivision [ , information about how to contact the
human rights advocate for assistance with the process, ] and a
statement that if the individual does not respond that the complaint will be
closed.
G. Step 6 Step 5: If the individual is not
satisfied disagrees with the director''s final decision or action
plan, he may file a petition for a hearing by the LHRC using the procedures
prescribed in 12VAC35-115-180. If the individual has accepted the relief
offered by the director, the matter is not subject to further review.
B. If at any time during the formal complaint process the human rights advocate concludes that there is substantial risk that serious or irreparable harm will result if the complaint is not resolved immediately, the human rights advocate shall inform the director, the provider, the provider's governing body, and the LHRC. Steps 1 through 5 of subdivision A 5 of this section shall not be followed. Instead, the LHRC shall conduct a hearing according to the special procedures for emergency hearings in 12VAC35-115-180.
Statutory Authority
§§37.2-203 and 37.2-400 of the Code of Virginia.
Historical Notes
Derived from Virginia Register Volume 18, Issue 3, eff. November 21, 2001.
12VAC35-115-180. Local Human Rights Committee hearing and review procedures.
A. Any individual or legally his authorized
representative as applicable who is not satisfied with does
not accept the relief offered by the director or disagrees with (i) a director''s
final decision and action plan resulting from the complaint resolution; (ii) a
director''s final action following a report of abuse, neglect, or
exploitation; or (iii) a director''s final decision following a complaint of
discrimination in the provision of services may request an LHRC hearing by
following the steps provided in subsections B through I of this section.
B. Step 1: The individual or his authorized representative
must file the petition must be filed for a hearing with the
chairperson of the LHRC within 10 working days of the director''s action or
final decision for which there is a on the complaint.
1. The petition for hearing must be in writing. It should contain all facts and arguments surrounding the complaint and reference any section of the regulations that the individual believes the provider violated.
2. The human rights advocate or any person the individual chooses may help the individual in filing the petition. If the individual chooses a person other than the human rights advocate to help him, he and his chosen representative may request the human rights advocate''s assistance in filing the petition.
C. Step 2: The LHRC chair shall forward a copy of the petition to the director and the human rights advocate as soon as he receives it. A copy of the petition shall also be forwarded to the provider''s governing body.
D. Step 3: Within five working days, the director shall submit
the following to the LHRC:
1. A written response to everything contained in the petition.;
and
2. A copy of the entire written record of the complaint.
E. Step 4: The LHRC shall hold a hearing within 15 20
working days of receiving the petition.
1. The parties shall have at least five working days'' notice of the hearing.
2. The director or his chosen representative designee
shall attend the hearing.
3. The individual or legally his
authorized representative, as applicable, making the complaint shall
attend the hearing.
3. 4. At the hearing, the parties and their
chosen representatives and designees have the right to present witnesses
and other evidence and the opportunity to be heard.
F. Step 5: Within 10 working days after the hearing ends, the
LHRC shall give, in writing, its written findings of fact and
recommendations to the parties and their representatives. Whenever appropriate,
the LHRC shall identify information that it believes the director shall take
into account in making decisions concerning discipline or termination of
personnel.
G. Step 6: Within five working days of receiving the LHRC''s
findings and recommendations, the director shall give the individual, the
individual''s chosen representative, the human rights advocate, the governing
body, and the LHRC a written action plan he intends to take to respond to the
LHRC''s findings and recommendations. Along with the action plan, the
director shall provide written notice to the individual about the time frame
for the individual's response pursuant to Step 7 (subsection H of this section)
and a statement that if the individual does not respond that the complaint will
be closed. The plan shall not be implemented for five working days after it
is submitted, unless the individual receiving services agrees to its
implementation sooner.
H. Step 7: The individual, his chosen representative, the
human rights advocate, or the LHRC may object to the action plan within five
working days by stating what the objection is and what the
director can do to resolve the objection.
1. If an objection is made, the director may not implement the
action plan, or may implement only that portion of the plan that the individual
making the complaint agrees to, until he resolves the objection as requested or
until he appeals to the SHRC for a decision under 12VAC35-115-210.
2. If no one objects to the action plan, the director shall
begin to implement it the plan on the sixth working day after he
submitted it.
I. Step 8: If an objection to the action plan is made and
the director does not resolve the objection to the action plan to the
individual''s satisfaction within two working days following the objection
its receipt by the director, the individual may appeal to the SHRC under
12VAC35-115-210.
Statutory Authority
§§37.2-203 and 37.2-400 of the Code of Virginia.
Historical Notes
Derived from Virginia Register Volume 18, Issue 3, eff. November 21, 2001.
12VAC35-115-190. Special procedures for emergency hearings by the LHRC.
A. Step 1: If the human rights advocate informs the
LHRC of a substantial risk that serious and irreparable harm will result if a
complaint is not resolved immediately, the LHRC shall hold and conclude a
preliminary hearing within 72 hours of receiving this information.
1. The director or his designee and the human rights
advocate shall attend the hearing. The individual and the legally his
authorized representative may attend the hearing.
2. The hearing shall be conducted according to the procedures in 12VAC35-115-180, but it shall be concluded on an expedited basis.
B. Step 2: At the end of the hearing, the LHRC shall
make preliminary findings and, if a violation is found, shall make preliminary
recommendations to the director, the provider, and the provider''s governing
body.
C. Step 3: The director shall formulate and carry out
an action plan within 24 hours of receiving the LHRC''s preliminary
recommendations. A copy of the plan shall be sent to the human rights advocate,
the individual, his authorized representative, and the governing body.
D. Step 4: If the individual or the human rights
advocate objects within 24 hours to the LHRC findings or recommendations or to
the director''s action plan, the LHRC shall conduct a full hearing within five
working days of the objection, following the procedures outlined in
12VAC35-115-180. This objection shall be in writing to the LHRC chairperson,
with a copy sent to the director.
E. Step 5: Either party may appeal the LHRC''s decision
to the SHRC under 12VAC35-115-210.
Statutory Authority
§§37.2-203 and 37.2-400 of the Code of Virginia.
Historical Notes
Derived from Virginia Register Volume 18, Issue 3, eff. November 21, 2001.
12VAC35-115-200. Special procedures for LHRC reviews involving consent and authorization.
A. Step 1: The LHRC may be requested, in writing, to
review whether an individual''s personal consent is required in the following
situations. individual, his authorized representative, or anyone acting
on the individual's behalf may request in writing that the LHRC review the
following situations and issue a decision:
1. If an individual [ his authorized representative ]
objects at any time to a specific treatment, participation in specific human
research, or disclosure of specific confidential information, [ the
appointment of a specific person as authorized representative or ] any
decision for which consent or authorization is required and has been
given by his legally authorized representative, other than a legal
guardian, he may ask the LHRC to decide whether his personal consent is
required for that treatment, participation in research, or disclosure of
information his capacity was properly evaluated, the authorized
representative was properly appointed, or his authorized representative's
decision was made based on the individual's basic values and any preferences
previously expressed by the individual to the extent that they are known, and
if unknown or unclear in the individual's best interests.
a. The provider shall take no action for which consent or authorization is required if the individual objects, except in an emergency or as otherwise permitted by law, pending the LHRC review.
b. If the LHRC determines that the individual's capacity was properly evaluated, the authorized representative is properly designated, or the authorized representative's decision was made based on the individual's basic values and any preferences previously expressed by the individual to the extent that they are known, or if unknown or unclear in the individual's best interests, then the provider may proceed according to the decision of the authorized representative.
c. If the LHRC determines that the individual's capacity was not properly evaluated or the authorized representative was not properly designated, then the provider shall take no action for which consent is required except in an emergency or as otherwise required or permitted by law, until the capacity review and authorized representative designation is properly done.
d. If the LHRC determines that the authorized representative's decision was not made based on the individual's basic values and any preferences previously expressed by the individual to the extent known, and if unknown or unclear, in the individual's best interests, then the provider shall take steps to remove the authorized representative pursuant to 12VAC35-115-146.
2. If an individual or his family member has obtained an
independent evaluation of the individual''s capacity to give any informed
consent to treatment or participation services or to participate
in human research under 12VAC35-115-70, or authorize the disclosure of
information under 12VAC35-115-90, and the opinion of that evaluator
conflicts with the opinion of the provider''s evaluator, the LHRC may be
requested to decide whether the individual''s personal consent is required
for any treatment or participation in research which evaluation will
control.
a. If the LHRC agrees that the individual lacks the
capacity to consent to treatment or services [ , ] or
authorize disclosure of information, the director may begin or continue
treatment or research [ , ] or disclose
information, but only the appropriate consent or authorization of the
authorized representative. The LHRC shall advise the individual of his right to
appeal this determination to the SHRC under 12VAC35-115-210.
b. If the LHRC does not agree that the individual lacks the
capacity to consent to treatment or services [ , ] or
authorize disclosure of information, the director shall not begin any treatment
[ , or ] research, or disclose information
[ with without ] the individual's consent or
authorization, or shall take immediate steps to discontinue any actions begun
without the consent or authorization of the individual. The director may
appeal to the SHRC under 12VAC35-115-210 but may not take any further action
until the SHRC issues its opinion.
3. If a director makes a decision that affects an individual
and the individual believes that the decision requires his personal consent or
authorization or that of his legally authorized representative, he
may object and ask the LHRC to decide whether consent or authorization
is required.
NOTE: If the individual is a minor, the consent of the
parent or legal guardian must be obtained, unless the treatment provided is for
treatment referenced under §54.1-2969 E of the Code of Virginia, including
outpatient medical or health services for substance abuse, or mental illness or
emotional disturbance, in which case the minor alone may provide the consent as
if an adult. If treatment involves admission to an inpatient treatment program,
the consent of a minor 14 years of age and older, in addition to that of the
parent, must also be obtained in accordance with §16.1-338 of the Code of
Virginia.
Regardless of the individual's capacity to consent to
treatment or services [ , ] or authorize
disclosure of information, if the LHRC determines that a decision made by a
director requires consent or authorization that was not obtained, the director
shall immediately rescind the action unless and until such consent or
authorization is obtained. The director may appeal to the SHRC under
12VAC35-115-210 but [ may ] not take any further action
until the SHRC issues its opinion.
B. Step 2: The LHRC may ask that a physician or licensed
clinical psychologist not employed by the provider and at the provider''s
expense, evaluate the individual and give an opinion about his capacity to
consent. The LHRC may not make a decision until it reviews the action proposed
by the director, any determination of lack of capacity, the opinion of the
independent evaluator if applicable, and the individual''s reasons for objecting
to that determination. Before making such a decision, the LHRC shall
review the action proposed by the director, any determination of lack of
capacity, the opinion of the independent evaluator if applicable, and the
individual's or his authorized representative's reasons for objecting to that
determination. To facilitate its review, the LHRC may ask that a physician or
licensed clinical psychologist not employed by the provider [ , ]
evaluate the individual at the provider's expense [ , ]
and give an opinion about his capacity to consent to treatment or authorize
information.
C. Step 3: The LHRC shall issue its notify
all parties and the human rights advocate of the decision within 10 working
days of the initial request.
1. If the LHRC agrees that the individual lacks the capacity
to consent, the director may begin or continue treatment or research, or
disclose the information, but only with the appropriate consent of the legally
authorized representative. The LHRC shall advise the individual of his right to
appeal this determination to the SHRC under 12VAC35-115-210.
2. If the LHRC does not agree that the individual lacks the
capacity to consent, the director shall not begin any treatment, research or
information disclosure without the individual''s consent, or shall take
immediate steps to discontinue use of medication if it has already begun. The
director may appeal to the SHRC under 12VAC35-115-210 but may not take any
further action until the SHRC issues its opinion.
3. If, regardless of the individual''s capacity to consent,
the LHRC determines that a decision made by a director requires consent that
was not obtained, the director shall immediately rescind the action unless and
until such consent is obtained. The director may appeal to the SHRC under
12VAC35-115-210 but may not take any further action until the SHRC issues its
opinion.
Statutory Authority
§§37.2-203 and 37.2-400 of the Code of Virginia.
Historical Notes
Derived from Virginia Register Volume 18, Issue 3, eff. November 21, 2001.
12VAC35-115-210. State Human Rights Committee appeals procedures.
A. Any party may appeal to the State Human Rights Committee
SHRC if he is not satisfied with any of the following:
1. An LHRC''s final findings of fact and recommendations following
a hearing.;
2. A director''s final action plan following an LHRC hearing.;
3. An LHRC''s final decision regarding the capacity of an
individual to consent to treatment, services, or research, or authorize
disclosure of confidential information.; or
4. An LHRC''s final decision concerning whether consent or authorization is needed for the director to take a certain action.
The steps for filing an appeal are provided in subsections B through I of this section.
B. Step 1: Appeals shall be filed in writing with the SHRC by a party within 10 working days of receipt of the final action.
1. The appeal shall explain the reasons the final action is not satisfactory.
2. The human rights advocate or any other person may help in filing the appeal. If the individual chooses a person other than the human rights advocate to help him, he and his chosen representative may request the human rights advocate''s help in filing the appeal.
3. The party appealing must give a copy of the appeal to the other party, the human rights advocate, and the LHRC.
4. If the director is the party appealing, he shall first request and get written permission to appeal from the commissioner or governing body of the provider, as appropriate. If the director does not get this written permission and note the appeal within 10 working days, his right to appeal is waived.
C. Step 2: If the director is appealing, the individual may file a written statement with the SHRC within five working days after receiving a copy of the appeal. If the individual is appealing, the director shall file a written statement with the SHRC within five working days after receiving a copy of the appeal.
D. Step 3: Within five working days of noting or being notified of an appeal, the director shall forward a complete record of the LHRC hearing to the SHRC. The record shall include, at a minimum:
1. The original petition or information filed with the LHRC and
any statement filed by the director in response.;
2. Parts of the individual''s services record that the LHRC
considered and any other parts of the services record submitted to, but not
considered by the LHRC that either party considers relevant.;
3. All written documents and materials presented to and
considered by the LHRC, including any independent evaluations conducted.;
4. A tape or word-for-word transcript of the LHRC
proceedings. , if available;
5. The LHRC''s findings of fact and recommendations.;
6. The director''s action plan, if any.; and
7. Any written objections to the action plan or its implementation.
E. Step 4: The SHRC shall hear the appeal within 20 working
days at its next scheduled meeting after the chair chairperson
receives the appeal.
1. The SHRC shall give the parties at least 10 working days'' notice of the appeal hearing.
2. The following rules govern appeal hearings:
a. The SHRC shall not hear any new evidence.
b. The SHRC is bound by the LHRC''s findings of fact subject to subdivision 3 of this subsection.
c. The SHRC shall limit its review to whether the facts, as found by the LHRC, establish a violation of these regulations and a determination of whether the LHRC''s recommendations or the action plan adequately address the alleged violation.
d. All parties and their representatives shall have the
opportunity to appear before the SHRC to present their [ position positions ]
and answer questions the SHRC may have.
e. The SHRC will shall notify the Inspector General
inspector general of the appeal.
3. If the SHRC decides that the LHRC''s findings of fact are clearly
wrong or that the hearing procedures employed by the LHRC were inadequate, the
SHRC may either:
a. Send the case back to the LHRC for another hearing to be completed within a time period specified by the SHRC; or
b. Conduct its own fact-finding hearing. If the SHRC chooses to conduct its own fact-finding hearing, it may appoint a subcommittee of at least three of its members as fact finders. The fact-finding hearing shall be conducted within 30 working days of the SHRC''s initial hearing.
In either case, the parties shall have 15 working days'' notice of the date of the hearing and the opportunity to be heard and to present witnesses and other evidence.
F. Step 5: Within 20 working days after the SHRC appeal hearing, the SHRC shall submit a report, its findings of fact, if applicable, and recommendations to the commissioner and to the provider''s governing body, with copies to the parties, the LHRC, and the human rights advocate.
G. Step 6: Within 10 working days after receiving the SHRC''s
report, in the case of appeals involving a state facility, the commissioner
shall submit an outline of actions to be taken in response to the SHRC''s
recommendations. In the case of appeals involving CSBs and private providers, both
the commissioner and the provider''s governing body shall each outline in
writing the action or actions they will take in response to the recommendations
of the SHRC. They shall also explain any reasons for not carrying out any of
the recommended actions. Copies of their responses shall be forwarded to the
SHRC, the LHRC, the director, the human rights advocate, and the individual.
H. Step 7: If the SHRC objects in writing to the commissioner''s or governing body''s proposed actions, or both, their actions shall be postponed. The commissioner or governing body, or both, shall meet with the SHRC at its next regularly scheduled meeting to attempt to arrange a mutually agreeable resolution.
I. Step 8: In the case of services provided directly by the department, the commissioner''s action plan shall be final and binding on all parties. However, when the SHRC believes the commissioner''s action plan is incompatible with the purpose of these regulations, it shall notify the board, the protection and advocacy agency, and the inspector general.
In the case of services delivered by all other providers, the
action plan of the provider''s governing body shall be reviewed by the
commissioner. If the commissioner determines that the provider has failed to
develop and carry out an acceptable action plan, the commissioner shall notify
the protection and advocacy agency and shall inform the SHRC what of
the sanctions the department will impose against the provider.
J. Step 9: Upon completion of the process outlined in subsections B through I of this section, the SHRC shall notify the parties and the human rights advocate of the final outcome of the complaint.
Statutory Authority
§§37.2-203 and 37.2-400 of the Code of Virginia.
Historical Notes
Derived from Virginia Register Volume 18, Issue 3, eff. November 21, 2001.
Part V VI
Variances
12VAC35-115-220. Variances.
A. Variances to these regulations shall be requested and approved only when the provider has tried to implement the relevant requirement without a variance and can provide objective, documented information that continued operation without a variance is not feasible or will prevent the delivery of effective and appropriate services and supports to individuals.
B. Only directors may apply for variances, and they must first be approved by the provider, the governing body of the provider, or the commissioner, as appropriate, before consideration by an LHRC or the SHRC.
C. Upon receiving approval from the governing body [ or
commissioner ], and after notifying the human rights advocate and
other interested persons, the director shall file a formal application for
variance with the LHRC. This application shall reference 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 [ seeking ]
a variance. The application shall also describe time limits and other
conditions for duration and the circumstances that will end the applicability
of the variance.
1. When the LHRC receives the application, it shall invite, and provide ample time to receive, oral or written statements about the application from the human rights advocate [ , individuals affected by the variance, ] and other interested persons.
2. The LHRC shall review the application and prepare a written report of facts, which shall include its recommendation for approval, disapproval, or modification. The LHRC shall send its report, recommendations, and a copy of the original application to the State Human Rights Director, the SHRC, and the director making application for the variance.
D. When the SHRC receives the application and the LHRC''s report, the SHRC shall do the following:
1. Invite oral or written statements about the application from
the applicant director, LHRC, advocate, and other interested persons by
publishing the request for variance in the next issue of the Virginia Register
of Regulations.;
2. Notify the Inspector General inspector general
of the request for variance.; and
3. After considering all available information, prepare a
written decision deferring, disapproving or , modifying, or
approving the application. All variances shall be approved for a specific time
period and must be reviewed at least annually.
a. A copy of this decision including conditions, time frames,
circumstances for removal, and the reasons for the decision shall be given to
the applicant director, the commissioner or governing body, where
appropriate, the State Human Rights Director state human rights
director, the human rights advocate, any person commenting on the request
at any stage, and the LHRC.
b. The decision and reasons shall also be published in the next issue of the Virginia Register of Regulations.
E. Directors shall implement any approved variance in strict compliance with the written application as amended, modified, or approved by the SHRC.
F. Providers shall develop policies and procedures for
monitoring the implementation of any approved variances. These policies and
procedures shall specify that at no time can a variance approved for one
individual be extended to general applicability. These policies and procedures
shall assure the ongoing collection of any data relevant to the variance and
the presentation of any later report concerning the variance as requested by
the commissioner, the State Human Rights Director state human rights
director, the human rights advocate, the LHRC or the SHRC.
G. The decision of the SHRC granting or denying a variance shall be final.
[ H. Following the granting of a variance, the provider shall notify all individuals affected by the variance about the details of the variance. ]
[ H. I. ] If an individual
is in immediate danger due to a provider's implementation of these regulations,
the provider may request a temporary variance pending approval pursuant to the
process described in this section. Such a request shall be submitted in writing
to the commissioner, chairperson of the SHRC, and state human rights director.
The commissioner, chairperson of the SHRC, and state human rights director
shall issue a decision within 48 hours of the receipt of such a request.
Statutory Authority
§§37.2-203 and 37.2-400 of the Code of Virginia.
Historical Notes
Derived from Virginia Register Volume 18, Issue 3, eff. November 21, 2001.
Part VI VII
Reporting Requirements
12VAC35-115-230. Provider requirements for reporting to the department.
A. Providers shall collect, maintain and report the following information concerning abuse, neglect, and exploitation:
1. The director of a facility operated by the department shall report allegations of abuse and neglect in accordance with all applicable operating instructions issued by the commissioner or his designee.
2. The director of a service licensed or funded by the department shall report each allegation of abuse or neglect to the assigned human rights advocate within 24 hours from the receipt of the allegation (see 12VAC35-115-50).
3. The investigating authority shall provide a written report
of the results of the investigation of abuse or neglect to the director and
human rights advocate within 10 working days from the date the investigation
began unless an exemption has been granted by the department (see
12VAC35-115-50). This report shall include but not be limited to the
following:
a. Whether abuse, neglect, or exploitation occurred;
b. Type The type of abuse; and
c. Whether the act resulted in physical or psychological injury.
B. Providers shall collect, maintain [ , ] and report the following information concerning deaths and serious injuries:
1. The director of a facility operated by the department shall report to the department deaths and serious injuries in accordance with all applicable operating instructions issued by the commissioner or his designee.
2. The director of a service licensed or funded by the
department shall report deaths and serious injuries in writing to the
department within 24 hours of discovery and by telephone to the legally
authorized representative, as applicable, within 24 hours.
3. All reports of death and serious injuries shall include but
not be limited to [ the following ]:
a. Date and place of death/injury the death or
[ serious ] injury;
b. Nature of the injuries and treatment required; and
c. Circumstances of death/serious the death or
serious injury.
C. Providers shall collect, maintain and report the following information concerning seclusion and restraint:
1. The director of a facility operated by the department shall report each instance of seclusion or restraint or both in accordance with all applicable operating instructions issued by the commissioner or his designee.
2. The director of a service licensed or funded by the department shall submit an annual report of each instance of seclusion or restraint or both by the 15th of January each year, or more frequently if requested by the department.
3. Each instance of seclusion or restraint or both shall be
compiled on a monthly basis and the report shall include [ but not be
limited to the following ]:
a. Type(s) to include:
(1) Physical restraint (manual hold).;
(2) Mechanical restraint.;
(3) Pharmacological (chemical restraint). ;
and
(4) Seclusion.
b. Rationale for the use of seclusion or restraint to include:
(1) Behavioral purpose.;
(2) Medical purpose.; or
(3) Protective purpose.
c. Duration of the seclusion or restraint, as follows:
(1) The duration of seclusion and restraint used for behavioral purposes is defined as the actual time the individual is in seclusion or restraint from the time of initiation of seclusion or restraint until the individual is released.
(2) The duration of restraint for medical and protective purposes is defined as the length of the episode as indicated in the order.
4. Any instance of seclusion or restraint that does not comply
with these regulations or approved variances, or that results in injury to an
individual, shall be reported to the legally authorized representative,
as applicable, and the assigned human rights advocate within 24 hours.
D. Providers shall collect, maintain and report the
following information concerning human rights activities:
1. D. The director shall provide to the human
rights advocate, at least monthly, and the LHRC information on
the type, resolution level, and findings of each complaint of a human
rights violation; reports shall be made to the LHRC upon request and
implementation of variances in accordance with the LHRC meeting schedule or as
requested by the advocate.
2. The director shall provide to the human rights advocate
and the LHRC, at least monthly, reports regarding the implementation of any
variances.
E. Reports required under this section shall be submitted to the department on forms or in an automated format or both developed by the department.
F. The department shall compile all data reported under this section and make this data available to the public and the inspector general upon request.
1. The department shall provide the compiled data in writing or by electronic means.
2. The department shall remove all provider?identifying information and all information that could be used to identify a person as an individual receiving services.
G. In the reporting, compiling and releasing of information
and statistical data provided under this section, the department and all
providers shall take all measures necessary to ensure that any [ consumer?identifying ]
information [ identifying individuals ] is not released to the
public, including encryption of data transferred by electronic means.
H. Nothing in this section is to be construed as requiring the reporting of proceedings, minutes, records, or reports of any committee or nonprofit entity providing a centralized credentialing service which are identified as privileged pursuant to §8.01-581.17 of the Code of Virginia.
I. Providers shall report to the Department of Health
Professions, Enforcement Division, violations of these regulations that
constitute reportable conditions under §54.1-2906 §§54.1-2400.4,
54.1-2909, and 54.1-2900.6 of the Code of Virginia.
Statutory Authority
§§37.2-203 and 37.2-400 of the Code of Virginia.
Historical Notes
Derived from Virginia Register Volume 18, Issue 3, eff. November 21, 2001.
Part VII VIII
Enforcement and Sanctions
12VAC35-115-240. Human rights enforcement and sanctions.
A. The commissioner may invoke the sanctions enumerated in §37.1-185.1
§37.2-419 of the Code of Virginia upon receipt of information that a
provider licensed or funded by the department is:
1. In violation of (i) the provisions of §37.1-84.1 §37.2-400
and §§37.1-179 through 37.1-189.2 §§37.2-403 through 37.2-422 of
the Code of Virginia;, (ii) these regulations; or ,
[ and or ] (iii) provisions of the licensing
regulations [ promulgated adopted ] pursuant to §§37.1-179.1
and 37.1-182 §§37.2-404 and 37.2-411 of the Code of Virginia; and
2. Such The violation adversely impacts affects
the human rights of individuals [ receiving services ] or
poses an imminent and substantial threat to the health, safety, or
welfare of individuals [ receiving services ].
The commissioner shall notify the provider in writing of the specific violation or violations found and of his intention to convene an informal conference pursuant to §2.2-4019 of the Code of Virginia at which the presiding officer will be asked to recommend issuance of a special order.
B. The sanctions contained in the special order shall remain
in effect during the pendency for the duration of any appeal of
the special order.
§§37.2-203 and 37.2-400 of the Code of Virginia.
Historical Notes
Derived from Virginia Register Volume 18, Issue 3, eff. November 21, 2001.
Part VIII IX
Responsibilities and Duties
12VAC35-115-250. Offices, composition and duties.
A. Providers and their directors shall:
1. Identify a person or persons accountable for helping individuals to exercise their rights and resolve complaints regarding services.
2. Comply with all state laws governing the reporting of abuse and neglect and all procedures set forth in these regulations for reporting allegations of abuse, neglect, or exploitation.
3. Require competency-based training on these regulations upon employment and at least annually thereafter. Documentation of such competency shall be maintained in the employee''s personnel file.
4. Take all steps necessary to assure compliance with these regulations in all services provided.
5. Communicate information about the availability of a human
rights advocate and assure an LHRC to all individuals receiving
services and authorized representatives.
6. Assure that appropriate staff attend all LHRC meetings to
report on human rights activities as directed by the human rights advocate or
the LHRC bylaws one LHRC affiliation within the region as defined by the
SHRC. The SHRC may require multi-site providers to have more than one LHRC
affiliation within a region if the SHRC determines that additional affiliations
are necessary to protect individuals' human rights.
7. Assure that the appropriate staff attend LHRC meetings in accordance with the LHRC meeting schedule to report on human rights activities, to impart information to the LHRC at the request of the human rights advocate or LHRC, and discuss specific concerns or issues with the LHRC.
7. 8. Cooperate with the human rights advocate
and the LHRC to investigate and correct conditions or practices interfering
with the free exercise of individuals'' human rights and make sure that
all employees cooperate with the human rights advocate and the LHRC in carrying
out their duties under these regulations. Notwithstanding the requirements
for complaints pursuant to Part V (12VAC35-115-150 et seq.) of this chapter,
the provider shall submit a written response indicating intended action to any
written recommendation made by the human rights advocate or LHRC within 15 days
of the receipt of such recommendation.
8. 9. Provide the advocate unrestricted access to
individuals and individual services records whenever the human rights advocate
deems access necessary to carry out rights protection, complaint resolution,
and advocacy.
9. 10. Submit to the human rights advocate for
review and comment any proposed policies, procedures, or practices that may
affect individual human rights.
10. 11. Comply with requests by the SHRC, LHRC,
and human rights advocate for information, policies, procedures, and written
reports regarding compliance with these regulations.
11. 12. Name a liaison to the LHRC, who shall
give the LHRC suitable meeting accommodations, clerical support and equipment,
and assure the availability of records and employee witnesses upon the request
of the LHRC. Oversight and assistance with the LHRC''s substantive
implementation of these regulations shall be provided by the SHRC. See
subsection E of this section.
12. 13. Submit applications for variances to
these regulations only as a last resort.
13. 14. Post in program locations information
about the existence and purpose of the human rights program.
14. 15. Not influence or attempt to influence the
appointment of any person to an LHRC associated with the provider or director.
15. 16. Perform any other duties required under these
regulations.
B. Employees of the provider shall, as a condition of employment:
1. Become familiar with these regulations, comply with them in all respects, and help individuals understand and assert their rights.
2. Protect individuals from any form of abuse, neglect and,
or exploitation (i) by not abusing, neglecting or exploiting any
individual; (ii) by not permitting or condoning anyone else to abuse,
neglect, or exploit abusing, neglecting, or exploiting any
individual; and (iii) by reporting all suspected abuse [ , neglect, or
exploitation ] to the [ program ] director.
Protecting individuals receiving services from abuse also includes using the
minimum force necessary to restrain an individual.
3. Cooperate with any investigation, meeting, hearing, or
appeal held under these regulations. Cooperation includes, but is not
limited to, giving statements or sworn testimony.
4. Perform any other duties required under these regulations.
C. The human rights advocate shall:
1. Represent any individual making a complaint or, upon request, consult with and help any other representative the individual chooses.
2. Monitor the implementation of an advocacy system for individuals receiving services from the provider or providers to which the advocate is assigned.
3. Promote and monitor provider compliance with these and other applicable individual rights laws, regulations, and policies.
4. Investigate and try to prevent or correct, informally or formally, any alleged rights violations by interviewing, mediating, negotiating, advising, and consulting with providers and their respective governing bodies, directors, and employees.
5. Whenever necessary, file a written complaint with the LHRC
for an individual receiving services or, where general conditions or
practices interfere with individuals'' rights, for the a group of
individuals.
6. Investigate and examine all conditions or practices which
that may interfere with the free exercise of individuals'' rights.
7. Help the individual or the individual''s chosen representative during any meeting, hearing, appeal, or other proceeding under these regulations unless the individual or his chosen representative chooses not to involve the human rights advocate.
8. Provide orientation, training, and technical assistance to
the LHRCs for which they are he is responsible.
9. Tell the LHRC about any recommendations made to the
director, the provider, the provider''s governing body, the State Human
Rights Director state human rights director, or the department for
changes in policies, procedures, or practices that have the potential to
adversely affect the rights of individuals.
10. Make recommendations to the State Human Rights Director
state human rights director concerning the employment and supervision of
other advocates where appropriate.
11. Submit regular reports to the State Human Rights
Director state human rights director, the LHRC, and the SHRC
about provider implementation of and compliance with these regulations.
12. Provide consultation to individuals, providers and their governing bodies, directors [ , ] and employees regarding individuals'' rights, providers'' duties, and complaint resolution.
13. Perform any other duties required under these regulations.
D. The Local Human Rights Committee shall:
1. Consist of five or more members appointed by the SHRC.
a. Membership shall be broadly representative of professional
and consumer interests. At least [ one-third of the members on each
committee two members ] shall be individuals who are
receiving [ services ] and or [ family
members of similar individuals with at least two individuals who are receiving
services or who ] have received within the five years of their
initial appointment public or private mental health, mental retardation, or
substance abuse treatment or habilitation services on each committee within
five years of their initial appointment. [ At least one-third of
the members shall be consumers or family members of consumers. ] Remaining
appointments shall include persons with interest, knowledge, or training in the
mental health, mental retardation, or substance abuse field.
b. No member shall be an employee of the department or an
employee or board member of the provider for which the LHRC provides oversight.
At least one member shall be a health care provider.
c. No current employee of the department or a provider shall serve as a member of any LHRC that serves an oversight function for the employing facility or provider.
c. d. Initial appointments to an LHRC shall be
staggered, with approximately one-third of the members appointed for a term of
three years, approximately one-third for a term of two years, and the remainder
for a term of one year. After that, all appointments shall be for a term of
three years.
d. e. A person may be appointed for no more than
two consecutive three-year terms. A person appointed to fill a vacancy
may serve out that term, and then be eligible for two additional
consecutive terms.
e. f. Nominations for membership to LHRCs shall
be submitted directly to the SHRC through the State Human Rights Director
state human rights director at the department''s Office of Human Rights.
2. Permit affiliations of local providers in accordance with the recommendations from the human rights advocate. SHRC approval is required for the denial of an affiliation request.
2. 3. Receive complaints of alleged rights
violations filed by or for individuals receiving services from providers with
which the LHRC is associated affiliated and hold hearings according
to the procedures set forth in Part IV V (12VAC35-115-150 et
seq.) of this chapter.
3. 4. Conduct investigations as requested by the
SHRC.
4. 5. Upon the request of the human rights
advocate, provider, director, or an individual or individuals [ receiving
services ], or on its own initiative, an LHRC may review any existing
or proposed policies, procedures, or practices, or behavioral
treatment plans that could jeopardize the rights of one or more
individuals receiving services from the provider with which the LHRC is
affiliated. In conducting this review, the LHRC may consult with any human
rights advocate, employee of the [ director provider ],
or anyone else. After this review, the LHRC shall make recommendations to the
director concerning changes in these plans, policies, procedures, and
practices.
5. 6. Receive, review, and act on applications
for variances to these regulations according to 12VAC35-115-220.
6. 7. Receive, review and comment on all restrictive
behavioral treatment programs and seclusion and plans involving the
use of restraint or time out and seclusion, restraint, or time out
policies for affiliated providers.
7. 8. Adopt written bylaws that address
procedures for conducting business, electing the chair chairperson,
secretary, and other officers, designating standing committees, and
setting the frequency of meetings.
8. 9. Elect from its own members a chair chairperson
to coordinate the activities of the LHRC and to preside at regular committee
meetings and any hearings held pursuant to these regulations.
9. 10. Conduct a meeting every quarter or more
frequently as necessary to adhere to all time lines as set forth in these
regulations.
10. 11. Require members to recuse themselves from
all cases wherein they have a financial, family or other conflict of
interest.
12. The LHRC may delegate summary decision-making authority to a subcommittee when expedited decisions are required before the next scheduled LHRC meeting to avoid seriously compromising an individual's quality of care, habilitation, or quality of life. The decision of the subcommittee shall be reviewed by the full LHRC at its next meeting.
11. 13. Perform any other duties required under
these regulations.
E. The State Human Rights Committee ( [ SHRC ]
) [ State Human Rights Committee ] shall:
1. Consist of nine members appointed by the board.
a. Members shall be broadly representative of professional and
consumer interests and of geographic areas in the Commonwealth. At least two members
shall be individuals who are receiving services or have received within
five years of their initial appointment public or private mental health,
mental retardation, or substance abuse treatment or habilitation services within
five years of their initial appointment. At least one-third of the
members shall be consumers or family members of similar individuals of
consumers. Remaining appointments shall include persons with interest,
knowledge, or training in the mental health, mental retardation, or substance
abuse field.
b. At least one member shall be a health care professional.
b. c. No member can be an employee or board
member of the department or a CSB.
c. All appointments after November 21, 2001, shall be for a
term of three years.
d. If there is a vacancy, interim appointments may be made for the remainder of the unexpired term.
e. A person may be appointed for no more than two consecutive three-year terms. A person appointed to fill a vacancy may serve out that term, and then be eligible for two additional consecutive terms.
2. Elect a chair chairperson from its own members
who shall:
a. Coordinate the activities of the SHRC;
b. Preside at regular meetings, hearings [ , ] and appeals; and
c. Have direct access to the commissioner and the board in carrying out these duties.
3. Upon request of the commissioner, human rights advocate,
provider, director, or an individual or individuals [ receiving
services or individuals ], or on its own initiative, a SHRC may
review any existing or proposed policies, procedures, or practices that could
jeopardize the rights of one or more individuals receiving services from
any provider. In conducting this review, the SHRC may consult with any human
rights advocate, employee of the director, or anyone else. After this review,
the SHRC shall make recommendations to the director or commissioner concerning
changes in these policies, procedures, and practices.
4. Determine the appropriate number and geographical boundaries of LHRCs and consolidate LHRCs serving only one provider into regional LHRCs whenever consolidation would assure greater protection of rights under these regulations.
5. Appoint members of LHRCs with the advice of and
consultation with the [ commissioner respective LHRC, human
rights advocate, ] and the state human rights director.
6. Advise and consult with the commissioner in about
the employment of the state human rights director and human rights advocates.
7. Conduct at least eight regular meetings per year.
8. Review decisions of LHRCs and, if appropriate, hold hearings and make recommendations to the commissioner, the board, and providers'' governing bodies regarding alleged violations of individuals'' rights according to the procedures specified in these regulations.
9. Provide oversight and assistance to LHRCs in the performance of their duties hereunder, including the development of guidance documents such as sample bylaws, affiliation agreements, and minutes to increase operational consistency among LHRCs.
10. Review denials of LHRC affiliations.
10. 11. Notify the commissioner and the [ State
Human Rights Director state human rights director ] whenever it
determines that its recommendations in a particular case are of general
interest and applicability to providers, human rights advocates, or LHRCs and
assure the availability of the opinion or report to providers, human rights
advocates, and LHRCs as appropriate. No document made available shall identify
the name of individuals or employees in a particular case.
11. 12. Grant or deny variances according to the
procedures specified in Part V VI (12VAC35-115-220) of this
chapter and review approved variances at least once every year.
12. 13. Make recommendations to the board
concerning proposed revisions to these regulations.
13. 14. Make recommendations to the commissioner
concerning revisions to any existing or proposed laws, regulations, policies,
procedures, and practices to ensure the protection of individuals'' rights.
14. 15. Review the scope and content of training
programs designed by the department to promote responsible performance of the
duties assigned under these regulations by providers, employees, human rights
advocates, and LHRC members, and, where appropriate, make recommendations to
the commissioner.
15. 16. Evaluate the implementation of these
regulations and make any necessary and appropriate recommendations to the
board, the commissioner, and the state human rights director concerning
interpretation and enforcement of the regulations.
16. 17. Submit a report on its activities
to the board each year and publish an annual report of its activities
and the status of human rights in mental health, mental retardation, and
substance abuse treatment and services in Virginia and make recommendations for
improvement.
17. 18. Adopt written bylaws that address
procedures for conducting business; making membership recommendations to the
board; electing a chair chairperson, vice chair chairperson,
secretary, and other officers; appointing members of LHRCs; designating
standing committees and their responsibilities; establishing ad hoc committees;
and setting the frequency of meetings.
18. 19. Review and approve the bylaws of LHRCs.
19. Publish an annual report of the status of human rights
in the mental health, mental retardation, and substance abuse treatment and
services in Virginia and make recommendations for improvement.
20. Require members to recuse themselves from all cases where
they have a financial, family or other conflict of interest.
21. Perform any other duties required under these regulations.
F. The state human rights director shall:
1. Lead the implementation of the statewide human rights
program and make ongoing recommendations to the commissioner, the SHRC, and the
LHRCs for continuous improvements in the program.
2. Advise the commissioner concerning the employment and retention of human rights advocates.
3. Advise providers, directors, advocates, LHRCs, the SHRC, and
the commissioner concerning their responsibilities under these regulations and
other applicable laws, regulations [ and departmental , ]
policies [ , and departmental instructions ] that protect
individuals'' rights.
4. Organize, coordinate, and oversee training programs designed to promote responsible performance of the duties assigned under these regulations.
5. Periodically visit service settings to monitor the
free exercise of those rights enumerated in these regulations.
6. Supervise human rights advocates in the performance of their duties under these regulations.
7. Support the SHRC and LHRCs in carrying out their duties under these regulations.
8. Review LHRC decisions and recommendations for general applicability and provide suggestions for training to appropriate entities.
9. Monitor implementation of corrective action plans approved by the SHRC.
10. Perform any other duties required under these regulations.
G. The commissioner shall:
1. Employ the state human rights director after advice and
consultation with the SHRC.
2. Employ advocates following consultation with the state human rights director.
3. Provide or arrange for assistance and training necessary to carry out and enforce these regulations.
4. Cooperate with the SHRC and the state human rights director to investigate providers and correct conditions or practices that interfere with the free exercise of individuals'' rights.
5. Advise and consult with the SHRC and the state human rights director concerning the appointment of members of LHRCs.
6. Maintain current and regularly updated data and perform regular
trend analyses to identify the need for corrective action in the areas of
abuse, neglect, and exploitation; seclusion and restraint; complaints; deaths
and serious incidents injuries; and variance applications.
7. Assure regular monitoring and enforcement of these regulations, including authorizing unannounced compliance reviews at any time.
8. Perform any other duties required under these regulations.
H. The board shall:
1. Promulgate Adopt regulations [ defining
that further define ] the rights of individuals receiving services
from providers covered by these regulations.
2. Appoint members of the SHRC.
3. Review and approve the bylaws of the SHRC.
4. Perform any other duties required under these regulations.
Statutory Authority
§§37.2-203 and 37.2-400 of the Code of Virginia.
Historical Notes
Derived from Virginia Register Volume 18, Issue 3, eff. November 21, 2001; Errata, 18:6 VA.R. December 3, 2001.