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

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

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

Purpose of notice: The SHRC is seeking comment on the application for a proposed new variance to the Human Rights Regulations for Western State Hospital.

Variance is requested to the following section:

12 VAC 35-115-50: Dignity. Specifically, (C)(6)(a) states, “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.”

Explanation: Contraband is an ongoing issue at Western State Hospital, and patients can be sent anything in the mail. Envelopes could contain unsafe objects, and packages may include items that could be used to harm staff or inflict self-harm. Western State Hospital feels that by opening all patient mail well into the nurses station, and away from the door, while in full view of surveillance cameras, this still allows patients to confirm what is in the mail while preserving staff’s ability to safely and promptly intervene if there is contraband.  Western State Hospital staff would not open the mail, including letters, without patients being present and in full view of the opening.  Western State Hospital will also make sure that when opening letters, no confidential information will be read, but will only establish that there is no contraband contained within the letters.

This request was prompted by a recent incident that highlighted serious potential risks. As such, Western State Hospital obtained approval from the DBHDS Commissioner, State Human Rights Director, and SHRC Chair in accordance with 12 VAC 35-115-220, to implement this request as a temporary variance pending approval pursuant to the full application process. The temporary variance was implemented 12/16/22.

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

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

Contact Information: Taneika Goldman, Director, Office of Human Rights, Department of Behavioral Health and Developmental Services, 1220 East Bank Street, P.O. Box 1797, Richmond, VA 23218-1797, telephone (804) 786-3988, FAX (833) 734-1241, or email taneika.goldman@dbhds.virginia.gov.