The rules that services are provided to disabled individuals are provided inside a safe community environment are useless, unless they are given the resources they need to live and participate in events in the community. These rule changes do not seem to address the underlying problems with access to safe, age appropriate housing, or engaging and intellectually appropriate recreational activities.

Message body

These Provisions, particularly in section “12VAC35-115-100, Restrictions on freedoms of everyday life,” are well meant, but they are meaningless in the current system.

According to section A1 and A2, we should have “freedom to move within the service setting, its grounds, and the community,” and “freedom to have and spend personal money.” But without reliable transportation services available, or the necessary income (or an appropriate means of earning sufficient income), we are unable to make these things a reality.

Furthermore, it is critical that provisions be added to this section to ensure that we are able to find safe, clean, affordable housing within a community of people who are of a similar age.

Because my family felt as if they were unable to care for me, I was placed in a nursing home at age 22. The feelings of seclusion inherent to being the only person my age in my environment for years on end has exacerbated the sense of isolation I felt already by being disabled.

My isolation is further intensified by the lack of reliable transportation available to me. If I was provided with, or was able to find adequate employment to earn a higher income, I could purchase a van so that my caregivers could drive me to different destinations in the community at my discretion.

But currently, I am completely reliant on RADAR for all of my transportation needs. Since the buses only run at certain times, and require advanced notice, I am extremely limited in my ability to get out and socialize in the community.

As a provider. I personally feel entirely unable to do anything to help my clients live safely in the community with their current level of resources. Due to their extremely low income levels, disabled individuals are currently left with a choice between abysmal living conditions, surrounded by appalling crime and violence in private apartments, or more institutional settings. These institutions may provide a safer environment for disabled individuals to live, but they are no more appropriate.

The results of placing disabled adults in Assisted Living Facilities or Independent Living Facilities is that they become further isolated from the community as a whole. It often means that they are the youngest person, living in an environment where the majority of the residents are atleast 40 or 50 years older than them. They feel further stigmatized by their disabilities as a result of the inappropriate housing options available to them.

In addition to the housing crisis, the Commonwealth lacks appropriate recreational opportunities for higher functioning individuals with disabilities. Roanoke in particular has a woeful shortage of safe, appropriate housing and suitable, positive activities for these individuals to participate in.

VNPP Comments on 12VAC35-115

30 - The definition of "Independent Review Committee" should be revised to include " . . . It shall be composed of professionals with training and experience in applied behavioral analysis or other relevant disciplines who are not involved . . ."

The definition should not limit the professional expertise on the committee to one discipline or speciality/theory of therapeutic approach for the obvious reasons that

• something new/better will come along
• the limitation would severely limit the pool of individuals who could participate, and
• ABA is not necessarily the best approach for all circumstances.

60 (B) 1. Would it be wise to remove the listing of basis for discrimination as new items (eg., gender identity) maybe added at some point?

105 (B) Are we confident that we have sufficient "licensed" professionals to complete the assessments?

175 (B) 1. Shall be modified as follows: "Be contacted by the director or designee regarding the complaint within 24 hours of being notified of the complaint but no later than the next business day."

D. Shall be modified as follows:  ". . . all of the requirements of subsections C and E.

G. Add that under the conditions described, the Advocate (a mandated reporter) must report their concerns to the local department of social services either directly or through the state abuse reporting hotline.

230 (A) 1 Would it be wise to add "or other approved system" in case the web based system becomes obsolete?

260 (C) Add as follows: "6.  Review the reports entered into the web based abuse/neglect/complaint  reporting system, resolve outstanding issues with the provider and, if all parties are satisfied, "close" the case within 30 working days of receiving the provider’s disposition or notice of appeal.

Generally the Virginia Network of Private Providers supports the modifications to the role of the LHRCs and the simplification of the complaint process; we believe these changes will support the core mission of the Human Rights system by allowing a focus on the issues that really matter!

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The new regulations overall have achieved the efficiency and reduced the redundancy evident in the current set of regulations.  Of concern as a provider are three areas: 1. The CHRIS system and its significant limitations and difficulties for providers; 2. The need for training for providers about human rights and the expectations of this department; and 3. Ways to communicate with providers on a regular basis regarding expectations, changes, etc. as it relates to the human rights department.  These three areas were evident in the survey done by Old Dominion in 2013 and do not appear to have been addressed in the new regulations. 

1. The CHRIS system, while useful for reporting, has some challenges as well.It is difficult to pull information for single programs within one larger agency so data is often skewed.The system is built on an old platform which does not always work well and requires specific things of the user and the computer before it will work.Finally, the system does not really allow for a dialogue between provider and licensing/Human Rights which would be very helpful in action planning and general technical assistance.

2. What is the intention of the HR Department in terms of training and ongoing technical assistance for providers? A suggestion, as it relates to training and ongoing communication with the Human Rights Division, may be that there is a representative who participates in a “consult” with affiliated services/programs to review current success in meeting HR regulations (without penalizing for initial error) then providing consult, feedback, and guidance on ensuring that guidelines are met. This type of collaboration with HR would be intended to help providers know more about expectations, regulations, and interpretation of regulations by local advocates, etc.

In terms of the regulations:

1. 12VAC35-115-105 appears redundant and more paperwork.  A person’s ISP is supposed to cover all of these areas.Why does another form/plan need to be created to address behavioral issues?12VAC35-115-105 A implies that this plan needs to be done for any behavioral intervention including restraints.  At times, restraints are done for clients who have not had a history of needing them.  It seems double work and more paper to address something that should already be in the ISP which is THE document guiding treatment.

2. 12VAC35-115-110 C 7 is of concern.Oftentimes when a restraint happens all other methods of de-escalation have been tried as restraints are a last resort.This particular regulation seems to imply that ALL ISP’s will need to have this regulation wording  in them even if a client has no history of needing restraint.Again the notion that restraints are a last resort is understandable in the regulations but to ask provider’s to document all of these things PRIOR to a restraint is not logical.At times there are clients who are restrained despite a history of not needing this in other placements or in the community.It appears to be an undue burden on providers to continue to document in the ISP and the behavioral plan and incident reports and CHRIS about interventions used.Once a restraint is done with a client the ISP should change to address new behavioral issues, de-escalation and other mental health needs of the client.

In the Definitions' section, questions related to "Independant Review Committee", I question how independant the committee will be if it is appointed by the provider. Also, will the committee be compensated for their time and level of expertise? If they are compensated, who will pay? If the committee members are volunteers, how will they be recruited? I also want any "Independent Review Committee" to include peers (those who have received services) and family members of peers. To create a provider appointed group that excludes peers and family members from the review process is unconscionable and flies in the face of a recovery centered system of care.

I think the person affected by the proposed behavioral treatment plan should be able to express their concerns directly to the independent review committee with the assistance of the Human Rights Advocate, if desired by the person. I also think the Human Rights Advocate should be available to the committee to help ensure that the proposed plan is in compliance with the human rights regulation.

 12VAC 35-115-110 Renistate section 8, I strongly believe all proposed restrictions should be reviewed by the LHRC prior to implementation.

12VAC 35-115-105 I strongly believe all Behavioral Treatment Plans must be reviewed by the LHRC proir to implementation and be subject to regular review by the LHRC.

Overall, the proposed new regulations bring the terminology and information up to current practices.  There are a few proposed regulations, which are of concern if implemented as proposed.

"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 or authorized insurer of his choice see his record. ".........Please define authorized insurer under 12VAC35-115-30 Definitions.

Requiring LHRC pror approval for restrictions that last longer than 7 days or is imposed multiple times in 30 days may not be practical. Such events would be rare and often a response to alleviate an  urgent situation that involves safety of the client or others. LHRC members are volunteers, some of whom are employed. Requests to scheule a special meeting can not always be accomodated in a short period of time. Clarification of Multiple would also be helpful.

Specificity on the type of restraints that constitutes a Behavioral Health Plan that would require an Indepenedent Review Committee approval would be helpful. Example; Would a treatment plan that includes Mechanical retraints ordered by the individuals MD also require an approval by an independent review committee?

The Independent Review Committee's behavioral specialist term is vague - please clarify requirements for the behavioral specialist..

Define: Administrative Hearing Bodies.

1. Contact to the individual by the director or designee regarding a complaint is not always possible within 24 hrs if a complaint comes in very late on a Friday or issued during a weekend - suggest adding the wording "or by the next business day".

B. "The individual or AR shall file the petition for a hearing with the chairperson of the lHRC within 10 working days...."

Suggest changing  this to filing the petition for a hearing with the Regional Advocate who will then follow-up with arranging the hearing with the LHRC Committee. Clients are already familiar with contacting their advocate and this would likley streamline the processes. In addition,  LHRC Chair person would likely not want their conatct information distributed.

C & D. - Recommend revising to - 24 hours or by then end of the next business day.

A2. TheDirector of a service licensed or funded by the department shall report each allegation of abuse or neglect via the web based reporting application within 24 hours of receipt of the allegation.

B2. The director of service licensed or funded by the dept.shall report deaths and  serious injuries within 24 hours of discoveryand by telephone to the AR with in 24 hrs.

Larger providers have a centralized system of submitting and tracking reports in the CHRIS system. Reporting within the 24 hours is difficult to meet. Would recommend adding " or by the end of the next business day" for reporting to the dept for both items above. - would also specify the submission process as being the online application. (CHRIS).

105.C.3 This regulation does not differentiate between types of behavioral treatment plans (those that contain restrictive practices and those that do not) and requires review and approval by the independent review committee prior to implementation of all plans.

To require this review for all plans (even when only positive reinforcement/support is included) is not a reasonable expectation for an agency that develops a high number of behavioral treatment plans. (Our organization develops over 300 such plans annually, with frequent monitoring/amendments, as needed.)  In addition, requiring such review prior to implementation (for plans without restrictive elements) hinders a person's timely access to sound therapeutic treatment which needs to begin the day of admission.

A proposed alternative is to require all restrictive plans be reviewed by the committee prior to implementation and a percentage of positive plans be reviewed within 30 days of implementation.

105.E  Again, this regulation does not differentiate between plans, whether all-positive or containing restrictive elements, requiring LHRC determination prior to implementation.

Consistent with best practices, and in compliance with other external requirements, our agency develops positive behavioral treatment plans to begin the day of admission. These initial plans are assessed for efficacy with revisions made promptly to assure responsiveness to changing needs of individuals.

If only positive practices are used, this regulation is not reasonable and would clearly have a negative impact on timely access to sound therapeutic treatment.

One stated intention of the proposed revisions to the Human Rights regulations is to streamline administrative process.  The proposed regulations do not clearly and successfully address this with regards to who holds responsibility for reviewing and approving policies and procedures related to human rights.  Specifically, 115-100 B, 7, e states program rules should be submitted to the LHRC upon request of the advocate or the LHRC, 115-175 E indicates that policies about complaints are to be submitted to the “department,” and 115-260 A, 9 states policies, procedures, or practices that may affect individual human rights are reviewed by the human rights advocate.  As a result, three different types of reviewers could provide input and one policy could need to be reviewed multiple times, as various reviewers provide different input and more than one needs to approve a policy.  This does not improve efficiency for DBHDS or for providers.

Should the decision be made to maintain 115-100 B, 7, e as is, please note this does not state program rules need to be submitted and approved in advance of implementation, nor is there a way of ensuring various advocates and LHRCs have a standard for requesting this information.  Clear expectations should be articulated here, to increase consistency and decrease potential bias. 

With regards to requiring LHRC approval for a restriction lasting longer than 7 days or that is imposed multiple times in 30 days (115-100, B, 5), these timeframes are impractical.  Requests for special meetings become a burden on LHRC members and the advocates and generally cannot be scheduled at the last minute.  This sets the expectation for the provider to presume a restriction could be needed for more than seven days and the provider would have to attempt to convene a special LHRC upon implementing the restriction.  Is there a more viable alternative?  Also – what constitutes “multiple”? If this is subject to provider’s interpretation, there will be a lack of consistency, as there currently is with regards to medication errors involving multiple missed doses.   

Shifting to a single process for Human Rights Complaints (115-175) is an improvement and, overall, the proposed regulations improve clarity.  However, the removal of the allowance for immediate resolution (115-170 A, 4, Step 1) potentially magnifies normal problem solving with individuals being served to the level of an investigation and does not serve to improve efficiency or streamline process.  Also, there is no allowance for an extension for a complaint that does not rise to the level of abuse.  Although rare, there are times when this is warranted.

Regarding 115-175 B, please revise to denote that the director or designee shall contact the individual within 24 hours or on the next business day.  This would be consistent with other aspects of the regulation, helps maintain appropriate boundaries between individuals receiving services and staff members of providers who conduct investigations, and avoids placing an undue burden on providers.

Virginia is in a period of flux.  Multiple changes are happening to the ID/DD Waiver system and it's implementation.  Individuals with higher medical and behavioral needs will be receiving higher rates of reimbursement and more individuals with these specialized needs will be discharged from Training Centers.  These are good things, that frankly are too long in coming.  Yet, at the same time, the changes in these regulations remove an extra layer of protection for the individuals when it comes to ensuring their Human Rights are protected.  LHRCs provide an external and independent level of protection for individuals receiving services.  While these changes allow for Human Rights Advocates to spend more time in the field, I fear that still may not be enough. 

As someone who has been a part of Local Human Rights Committees in a few capacities over the last twenty years, the value of these committees lies in the review, discussion, and feedback from people who are not employed by the state. These committees present a forum to question non-reporting practices of many providers.   It is rare for providers to report complaints to Human Rights - for example, complaints regarding take home medications (services), complaints of not being taken to church (dignity), complaints of being yelled at by staff (dignity/abuse). It is even more rare for a provider to actually put in writing that they are using restrictions in a behavioral plan or ISP.  The committee meetings are a place where it is reviewed regularly what a complaint is and that it must be reported, even if resolved informally.  Advocates and committee members are able to provide training to providers on a large scale at meetings, with all providers hearing the same words.  This is an important part of advocacy and ensuring implementation of the regulations. 

• The new regulations have removed the wording that states that in 115-50 which stated "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 local Department of Social Services..."  Please reinstate this wording in 117-F - although all persons who work or volunteer at an agency covered by these regulations are mandated reporters, DSS reporting by agencies is often not completed per law.   ?
• I am in STRONG favor that the regulations seem to indicate that now ALL human rights complaints will have a letter to the individual and authorized representative with the resolution to the complaint within 10 business days. This includes complaints that are resolved at the program level.  This provides protection to both the individual and the agency. 
• In other comments I saw that it was requested that the wording be changed that the Human Rights Advocate be notified within 24 hours or "no later than the next business day".  If that request is to be honored, I request that a time be added to the next business day.  A complaint occurring at 6pm on a Friday and not reported until 4:50pm on Monday to the Department is much too long. 

Thank you for reading these comments. 

My comments are both as a provider of services and as an LHRC member.  I appreciate the Department wanting to streamline the process however, placing sole responsibility for oversight on the advocates/licensing is not feasible under the current system. The Dept has limited resources for both of these divisions and the current workload of each is unmanageable. In theory, the plan sounds workable but in reality it will only weaken an already fragile system.  Take a look at the existing number of advocates and divide that into the number of clients each advocate has responsibility to protect.  IT IS NOT POSSIBLE TO ASSURE AND PROTECT THE RIGHTS OF PEOPLE.

LHRC's serve a vital function of oversight which assists regional advocates in assuring the protection of rights to individuals receiving services.  As a provider, reporting to an LHRC, the fact that I am required to report to this Committee makes me more vigilant in assuring individual rights.  Knowing that there will  be scrutiny of my actions as a provider serves as a check and balance.  Removing this function from LHRC's will set this already fragile system backwards in protecting/and assuring  rights.  The proposal is to revamp the LHRC's functions and have the advocates handle all rights violations.  If adequate resources were available, this might be a good idea but at present some advocates are responsible for thousands of clients at any given time.  The LHRC's function to provide an additional layer of accountability in protecting a vulnerable  population.    The proposed diluting of this system runs counter to the Department of Justice requirements to assure health and safety.

As a provider of services, the proposed regulations would surely lighten some of the burden but it will do nothing to protect people.  The current system is hanging by a thread; the proposed regulations, if approved, will sever the one thread that holds this fragmented safetynet in place.  As an LHRC member, I do so because I believe I serve an important role in protecting people.  Having providers no longer report to this entity will place people at risk.  During every LHRC meeting I have seen the majority of providers want to do the right thing.  In those same meetings, I have seen providers ( though only a few) who have no interest in promoting rights.  They attend because presently they are required to do so. As a  provider and and LHRC member! I have learned a great deal from other providers.  I believe it has made me a better advocate.    To strip this important process from providers will only weaken an already struggling system of care.  Thank you for allowing me to comment on this important matter.

As defined in these regulations, “Person centered” means focusing on the needs and preferences of the individual, empowering and supporting the individual in defining the directions for his/her life, and promoting self-determination, community involvement and recovery.

Is it the intention of these regulations to ensure systematic, consistent and dependable partnering with people receiving services to advocate for themselves in a manner so clearly explained in the above statement, regardless of the involvement of guardians, family members or authorized representatives; and regardless, as well, of the individual’s ability to initiate and sustain self-advocacy?

If so, the current system would have to change to ensure this. What would these changes be?

12VAC35-115-105 Behavior Treatment Plans

Section D - Is it the intention of these regulations to require that all plans be reviewed and approved by an independent review committee prior to implementation, including when rights issues and/or restrictions are not present?

If so, who would the members of this committee be, and how would the flexible and responsive support so critical to successful behavioral support services be delivered effectively with this requirement?

12VAC35-115-175 Human rights complaint process

Section C.1 – Clarify how the provider is to notify the department.

12VAC35-115-175 Human rights complaint process

Section F. 3 – Amend to state, “ The program director shall  notify the department and the authorized representative, if applicable, of an allegation of abuse or neglect within 24 hours or the next business day, of the receipt of the allegation”. Additionally, clarify how the provider is to notify the department.

Section F. 5 – A provider is required to submit information regarding the investigation and the findings via CHRIS which the human rights advocate has access to currently. Submitting the investigation and findings in writing to the human rights advocate is redundant.  

12VAC35-115-230 Provider requirements for reporting

Section A. 2 – Amend to state, “ ..within 24 hours, or the next business day, of receipt of the allegations”.

Section A. 3 – A provider is required to submit information regarding the investigation and the findings via CHRIS which the human rights advocate has access to currently. Submitting the investigation and findings in writing to the human rights advocate is redundant. 

Please provide clarification for the time frame for completion and notification regarding the following sections. This could be interpreted as a total of 20 days in which case it woudl be would be contradictory to the individual's notice which must be received within 10 days.

B. The individual shall:  5. Receive a report with the director's plan within 10 working days; 

F. Additional requirements for complaints involving abuse,
neglect, or exploitation:   5. The investigator shall provide a written report of the
results of the investigation of abuse or neglect to the director and to the human rights advocate within 10
working days from the date the investigation began unless
an extension has been granted.

7. The program director shall submit the final decision and
action plan, if applicable, to the individual, authorized
representative, if applicable, and human rights advocate
within 10 working days of its completion.

12VAC35-115-30 “Independent Review Committee”
Proposed language: "Independent review committee" means a committee appointed or accessed by a provider to review and approve the clinical efficacy of the provider's behavioral treatment plans and associated data collection procedures. An independent review committee shall be composed of professionals with training and experience in applied behavioral analysis who are not involved in the development of the plan or directly providing services to the individual.

Recommended language: "Independent review committee" means a committee appointed or accessed by a provider the LHRC or SHRC to review and approve the clinical efficacy of the provider's behavioral treatment plans and associated data collection procedures. An independent review committee shall be composed of licensed professionals with training and experience in applied behavioral analysis who are not involved in the development of the plan or directly providing services to the individual.

12VAC 35-115-110 “Use of seclusion, restraint, and time out.” C.8
Proposed language: 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.

Recommended language: 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. (Do not remove)

12VAC35-115-145. Determination of capacity to give consent or authorization. 6. (add new section)
Recommended language (new language): 6. Under no circumstances shall restrictions be placed on an incapacitated person’s right to speak with an attorney, an ombudsman, or a representative of the state protection and advocacy organization as defined under section 51.5-39.13 of the Virginia Code.

12VAC35-115-175 “Human Rights Complaint Process” C.5
Proposed language: Ensure that all communications to the individual are in the manner, format, and language most easily understood by the individual;

Recommended language: Ensure that all communications to the individual are in the manner, format, and language most easily understood by the individual and ensure that the individual is aware of the availability of alternate formats for materials (e.g. Braille, large-print, etc.)