August 10, 2017

To:      Stakeholders

Fr:       Deb Lochart, Director, Office of Human Rights

Re:      Request for Comment: DRAFT REVISIONS Regarding Behavioral Treatment Plans in Chapter 115 [Regulations to Assure the Rights of Individuals Receiving Services from Providers Licensed, Funded, or Operated by DBHDS (12 VAC 35-115-10 et seq.,), “Human Rights Regulations”]

As you know, major administrative revisions to the Human Rights regulations initiated on March 18, 2013, via the standard adoption process finally became effective on February 9, 2017.  In the succeeding months since then, changes included in the language (posted on December 7, 2015) regarding behavioral treatment plans has drawn stakeholder and staff attention. 

In response to this interest, the agency is circulating the attached draft of revisions for stakeholder comment.  Three edits during the regulatory adoption process created unintended consequences that require review for impact on providers and individuals, and the system as a whole.  Your review will assist the Office of Human Rights in reviewing the existing regulations in regard to behavior treatment plans to ensure both rights of individuals, and stakeholder issues and concerns, are addressed. 

Specifically, your consideration of:

• Amend section 105 C.3. This language was moved from section 110 C.18.a.(3) in the previous regulations to section 105 C.3. in the revised (current) regulations, implying that all behavioral treatment plans must be reviewed by an independent review committee prior to implementation for review and approval of the ‘technical adequacy of the plan and data collection procedures.’  An amendment restores the language to make it clear that only those plans involving the use of restraint or time out require review by an independent review committee prior to implementation. Previously, only those plans including seclusion and restraint had this requirement.  Please note the requirements in subsections 105 D., E., F., and G. are unchanged.
• In section 105 B., adding ‘licensed behavior analyst’ to the list of professionals who may conduct a detailed and systematic assessment of the behavior and the situations in which the behavior occurs when providers wish to use individualized restrictions such as restraint or time out in a behavioral treatment plan to address challenging behaviors that present an immediate danger to the individual or others.  The addition of this title specifically applies only to these assessments.
• A secondary focus will be consideration of removing the word ‘applied’ from the experiential qualifications of the Independent Review Committee in its definition in section 30.  This additional word appears to have narrowed the possible type of behavioral analysis beyond what was intended.  Also, consider the insertion of ‘and interventions’ after ‘behavioral analysis’ in the same section.

Please note that current practice under the newly adopted regulations would not be changed by the proposed revisions.  I welcome your comments.  I am inviting you to respond with comment no later than Friday, August 25, 2017. 

Deborah Lochart, Director, DBHDS Office of Human Rights, 1220 East Bank Street, P.O. Box 1797, Richmond, VA 23218-1797, Email: deb.lochart@dbhds.virginia.gov; Phone: (804) 786-0032; Fax (804) 804-371-2308.

Thank you for your assistance. 

12VAC35-115-30. Definitions.

"Independent review committee" means a committee appointed or accessed by a provider to review and approve the clinical efficacy of the provider's behavioral treatment plans and associated data collection procedures. An independent review committee shall be composed of professionals with training and experience in applied behavioral analysis and interventions who are not involved in the development of the plan or directly providing services to the individual.

12VAC35-115-105. Behavioral treatment plans.

A. A behavioral treatment plan is used to assist an individual to improve participation in normal activities and conditions of everyday living, reduce challenging behaviors, alleviate symptoms of psychopathology, and maintain a safe and orderly environment.

B. Providers may use individualized restrictions such as restraint or time out in a behavioral treatment plan to address challenging behaviors that present an immediate danger to the individual or others, but only after a licensed professional, or licensed behavior analyst has conducted a detailed and systematic assessment of the behavior and the situations in which the behavior occurs. Providers shall document in the individual's services record that the lack of success or probable success of less restrictive procedures attempted or considered, and the risks associated with not treating the behavior, are greater than any risks associated with the use of the proposed restrictions.

C. Providers shall develop any behavioral treatment plan according to their policies and procedures, which shall ensure that:

1. Behavioral treatment plans are initiated, developed, carried out, and monitored by professionals who are qualified by expertise, training, education, or credentials to do so;

2. Behavioral treatment plans include nonrestrictive procedures and environmental modifications that address the targeted behavior; and

3. Behavioral treatment plans involving the use of restraint or timeout are submitted to an independent review committee, prior to implementation, for review and approval of the technical adequacy of the plan and data collection procedures.

D. In addition to any other requirements of 42 CFR 483.440(f)(3), providers that are intermediate care facilities for individuals with intellectual disabilities shall submit any behavioral treatment plan that involves the use of restraint or time out, and its independent review committee approval, to the SCC under 42 CFR 483.440(f)(3) for the SCC's approval prior to implementation.

E. Providers other than intermediate care facilities for individuals with intellectual disabilities shall submit any behavioral treatment plan that involves the use of restraint or time out, and its independent review committee approval, to the LHRC, which shall determine whether the plan is in accordance with this chapter prior to implementation.

F. If either the LHRC or SCC finds that the behavioral treatment plan violates the rights of the individual or is not being implemented in accordance with this chapter, the LHRC or SCC shall notify the director and provide recommendations regarding the proposed plan.

G. Behavioral treatment plans involving the use of restraint or time out shall be reviewed quarterly by the independent review committee and the LHRC or SCC to determine if the use of restraint has resulted in improvements in functioning of the individual.

H. Providers shall not use seclusion in a behavioral treatment plan.