DEPARTMENT OF BEHAVIORAL HEALTH AND DEVELOPMENTAL SERVICES

Decision on 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 a decision on applications for 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 decisions and reasons for variances are described below.

Purpose of notice: After considering all available information, at its meeting June 22, 2021, the SHRC voted to approve the applications for variances to the Human Rights Regulations.

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.

This variance was approved for a three year period with a modification to the request, that if neither the Chair nor Vice-Chair of the SHRC are individuals receiving services, then amember of the SHRC who is an individual receiving services shall be appointed to the Appeals Committee.

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.

This variance was not approved.

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.

This variance was approved for a three year period.

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.