January 29, 2018

Emily Bowles, Legal Coordinator

Dept. of Behavioral Health & Developmental Services

PO Box 1797

Richmond, VA 23218-1797

RE: Regulations for Children’s Residential Facilities

Dear Ms. Bowles,

The disAbility Law Center of Virginia (dLCV), the Commonwealth’s federally mandated protection and advocacy system, respectfully submits the following public comment in relation to the Department’s periodic review of its Regulations for Children’s Residential Facilities. We strongly urge the Department to amend these regulations to better protect the health, safety, and welfare of children with disabilities in residential programs throughout Virginia. Amendments should:

• Align with quality and risk management provisions included in the US v VA Settlement Agreement.

• Incorporate model practices for state implementation of comprehensive compliance issued by the US Department of Health and Human Services (HHS).

• Protect children from dangerous seclusion and restraint practices.

Countless individuals included in the Settlement Agreement’s target population have received, or will receive, services from providers covered by the Department’s Regulations for Children’s Residential Facilities. A compliance report submitted to the US District Court in December 2017 noted, “The Independent Reviewer has previously identified, and the Commonwealth has acknowledged, that the DBHDS Licensing Rules and Regulations do not align with the requirements of the Settlement Agreement.” Moreover, the regulations “provide significant obstacles to achieving compliance.” dLCV therefore urges the Department to amend the Regulations for Children’s Residential Facilities to include the Settlement Agreement’s quality and risk management provisions. The Department has already proposed necessary changes to the licensing regulations that apply to all services other than children’s residential.

In response to a comprehensive investigation undertaken by the Office for Civil Rights, the Office of Inspector General, and the Administration for Community Living, HHS issued a report in January 2018 called Ensuring Beneficiary Health and Safety in Group Homes Through State Implementation of Comprehensive Compliance Oversight. Importantly, the report includes model practices for state incident management, investigations, and quality assurance systems. dLCV urges the Department to incorporate these model practices into the Regulations for Children’s Residential Facilities to improve compliance with the Olmstead decision and ensure safety for children with disabilities in residential programs.

The recent death of a teenager proximate to restraint at North Spring Behavioral Healthcare, a provider licensed under the Department’s Regulations for Children’s Residential Facilities, serves as an important reminder of the very real risks associated with restraint use. The teenager, who died from positional asphyxiation, may have had a wholly different outcome if his residential provider had been required to develop and implement an annual seclusion and restraint reduction plan, universally employ seclusion and restraint prevention tools (such as safety plans), and complete root cause analyses and debriefings  for all instances of seclusion and restraint. dLCV urges the Department to incorporate the Six Core Strategies for Reducing Seclusion and Restraint Use, developed by the National Association of State Mental Health Program Directors, into its regulatory framework for children’s residential facilities.

The Department should promptly amend the Regulations for Children’s Residential Facilities to better protect the health, safety, and welfare of children with disabilities in residential programs throughout Virginia. Thank you for your thoughtful consideration of dLCV’s public comment.

Sincerely,

Colleen Miller

Executive Director