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’ Virginia Center for Behavioral Rehabilitation (VCBR).

Variance to Procedures for 12VAC35-115-150 General Provisions;

12VAC35-l 15-175 Human Rights Complaint Process; l2VAC35-115-180 Local Human Rights Committee Hearing and Review Procedures; 12VAC35-115-190 Special Procedures for Emergency Hearings by the LHRC; 12VAC35-115-200 Special Procedures for LHRC Reviews Involving Consent and Authorization; and 12VAC35-115-210 State Human Rights Committee Appeals Procedures.

Explanation: Prior to 2010, VCBR followed the complaint process outlined in the Human Rights Regulations. As the census of the facility grew, the volume of complaints from residents overburdened the LHRC and became a treatment distraction for residents. The modified resident complaint process provides a similar level of review to the regulations listed above. This modified complaint process allows for a review of complaints at a "Formal" and "Director" level within the facility. The "Complaints Coordinator" of the facility meets with the resident at the Formal level in an attempt to resolve the issue at hand. At the Director level, the facility director or designee reviews the complaint and attempts to resolve the issue at hand. If the resident is not satisfied with the determination or actions by the facility, the resident may appeal the decision to the VCBR Complaints Appeal Committee. This Appeal Committee is comprised of two members of the SHRC and the Director of the DBHDS Office of Human Rights. Of note, having the Appeal Committee ensures that there is still a process in place for a final review by individuals not affiliated with the facility.

Variance to Procedures for 12VAC35-115-100 Restrictions on Freedoms of Everyday Life: B. 5 - LHRC Review of imposed restrictions that last longer than seven days/imposed three or more times during a thirty-day period.

Explanation: This variance permits VCBR to place a resident on restriction, under this subsection or under 12VAC35-l 15-50, which lasts longer than seven days or is imposed three or more times in a thirty-day time period without the approval of a local human rights committee (LHRC). Sexually violent predators may engage in behaviors that require an immediate restriction to ensure safety. It is necessary to implement restrictions in a timely manner so that the safety of residents and the general public is maintained. Prior review of a restriction by a LHRC may delay the implementation or continuation of a necessary restriction, increasing risk. Sexually violent predators may plan dangerous actions to circumvent established time frames for review (e.g., seven or thirty days). Longer and more frequent restrictions, as determined by the individual\'s treatment team, may be required to assure the safety of residents, staff, and the general public. An individual may utilize the facility complaint process to request review of an imposed restriction.

Procedures for ensuring residents’ freedoms of everyday life within VCBR and procedures for implementing restrictions on those freedoms shall be outlined in Facility Instruction No. 201, Restrictions on Freedoms of Everyday Life.

Variance to Procedures for 12VAC35-l l 5-50 C.3. a - reasonable privacy and private storage space.

Explanation: While VCBR is substantially able to meet the requirements of this section, the facility does ·\'double-bunk" individuals in rooms that are approximately 85 square feet. The facility provides private (lockable) storages spaces to residents in their rooms.

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: March 29, 2021, through April 12, 2021.

Description of proposal: The proposed variance application must comply with the general requirements of Part VI, Variances (12VAC35-115-220), of the Human Rights Regulations.

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) 371-0064, FAX (833) 734-1241, or email taneika.goldman@dbhds.virginia.gov.