Virginia Regulatory Town Hall
Health and Human Resources
Department of Behavioral Health and Developmental Services
State Board of Behavioral Health and Developmental Services
Petition 307
Petition Information
Petition Title R.C. Carter Petition for Rulemaking
Date Filed 8/27/2019    [Transmittal Sheet]
Petitioner R.C. Carter 
Petitioner's Request

Initial Agency Notice

Date Received:  August 13, 2019.

Title of Regulation: 12VAC35-105. Rules and Regulations for Licensing Providers by the Department of Behavioral Health and Developmental Services.

Statutory Authority: § 37.2-400 of the Code of Virginia.

To amend 12VAC35-105-520. Risk Management., in accordance with the Virginia Court of Appeals in Gregory Allen Moyer v. Commonwealth of Virginia (2000), \\\\\"when interpreting the law one must consider other sections of law in determining legislative intent,\\\\\" in order that the new Office of Licensing Associate Director of State Operations develop and coordinate the oversight of the interpretation and implementation of the additional 42 policies and procedures that providers are required to have in writing in accordance with the HIPAA Act under Risk Analysis and Risk Management which can be found under the following sections 45 CFR §164.306, 45 CFR §164.308, 45 CFR §164.310, 45 CFR §164.312, 45 CFR §164.314, and 45 CFR §164.316.

Agency's Plan

The State Board of Behavioral Health and Developmental Services will consider this petition at the next scheduled meeting after the close of the public comment period, on October 9, 2019, at Western State Hospital, Staunton, Virginia. 

Comment Period Began 9/16/2019    Ended 10/6/2019
Virginia Register Announcement Submitted on 8/27/2019
The Virginia Register of Regulations
Published on: 9/16/2019     Volume: 36  Issue: 2
Agency Decision Take no action [Transmittal Sheet]    
Response Date 10/17/2019
Decision Publication Date Published on: 11/11/2019     Volume: 36  Issue: 6
Agency Decision Summary

The petition was considered by the board at the regular meeting held on Wednesday, October 9, 2019, at Western State Hospital in Staunton, Virginia.  After reviewing all of the information received, the board declined to pursue the suggestions on the matter for the following reasons: 

  1. Regulation 12-VAC35-105-870 B 4 already states that the provider\'s record management policy be consistent with applicable state and federal laws including the Health Insurance Portability and Accountability Act (HIPAA) (Public Law 104-191) and implementing regulations (45 CFR Parts 160, 162, and 164). Therefore, technically, compliance with these provisions is already required under DBHDS licensing regulations. 
  2. There are federal agencies tasked with enforcement of HIPAA including the U.S. Department of Health and Human Services (HHS) Office for Civil Rights (OCR) and Centers for Medicare and Medicaid Services (CMS).
  3. Currently, the way the Licensing Regulations (12VAC35-105) are written, any changes that occur at the federal level are automatically captured in the regulations because providers are only required compliance with the federal law and do not include specific provisions. If the regulations are changed to specifically include text from HIPAA, the regulations will have to be changed every time that the federal laws change. 

Contact Information
Name / Title: Ruth Anne Walker  / Director of Regulatory Affairs
Address: Jefferson Bldg.
1220 Bank St., 11th Floor
Richmond, 23219
Email Address:
Telephone: (804)225-2252    FAX: (804)786-8623    TDD: (804)371-8977