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 (DBHDS) (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 proposed new variances to the Human Rights Regulations for DBHDS’ Central State Hospital (CSH). The request is itemized according to four distinct CSH policies.
I. Variance is requested to the following sections:
12 VAC 35-115-150: General Provisions
12 VAC 35-115-175: Human Rights Complaint Process
12 VAC 35-115-180: Local Human Rights Committee Hearing and Review Procedures
12 VAC 35-115-190: Special Procedures for Emergency Hearings by the LHRC
12 VAC 35-115-200: Special Procedures for LHRC Reviews Involving Consent and Authorization
12 VAC 35-115-210: State Human Rights Committee Appeals Procedure
Explanation: CSH requests variances to the above to allow alternative procedures for addressing complaints by individuals in maximum security when the individual is not satisfied with the director’s response, so that the individual may file a final appeal directly to the CSH Maximum Security Appeals Committee.
II. Variance is requested to the following section:
12 VAC 35-115-100, Restrictions on Freedoms of Everyday Life, A 1 c, "freedom to have and spend personal money.”
Explanation: Individuals who are receiving hospitalization under the civil admissions process in the maximum security perimeter may not keep any form of money on their person. The CSH variance to this regulation allows non-forensic patients to purchase items in a canteen and from external providers; however, individuals may not have money on their person.
III. Variance is requested to the following sections:
12 VAC 35-115-20 A 2, Policy, "Each individual who receives services shall be assured respect for basic human dignity."
12 VAC 35-115-50 C 3 a, Dignity, “each individual has the right to … reasonable privacy….”
Explanation: CSH cannot fulfill its duty to provide a safe environment for individuals who are high-risk in a secure forensic program through less intrusive means than routine “pat downs” of fully clothed individuals and proactive searches of individuals’ bedroom areas. The CSH variance to these regulations allows for routine pat downs of fully clothed non-forensic individuals in secure programs: (i) before and after group movement within a secure perimeter; (ii) anytime an individual leaves the secure perimeter; (iii) or any time an individual has physical access to a visitor who is not an employee of CSH. This will allow proactive routine searches of individuals’ bedrooms to identify contraband or breaches of safety and security.
IV. Variance is requested to the following sections:
12 VAC 35-115-50, Dignity:
C 6, “each individual has the right to… communicate privately with any person by mail and have help in writing and reading mail, as needed."
C 6 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.”
C 7, "each individual has the right to… communicate privately with any person by telephone and have help in doing so."
C 7 a, "An individual’s access to the telephone may be limited only if, in the judgment of a licensed professional, communication with another person will result in demonstrable harm to the individual or significantly affect his treatment."
Explanation: The CSH variance to these regulations allows for staff to open but not read mail and packages in the presence of the individual in the maximum security program. CSH also seeks to restrict individuals in the maximum security forensic program from communicating with each other by mail or telephone.
Any variances to these regulations by the state facility listed above are reviewed by the SHRC at least annually, with reports to the SHRC regarding the variances as requested.
Public comment period: July 4, 2022, through August 4, 2022.
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 by the last day of the comment period. DBHDS shall provide comments to the SHRC. 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 email@example.com.