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Virginia Regulatory Town Hall
Agency
Department of Behavioral Health and Developmental Services
 
Board
State Board of Behavioral Health and Developmental Services
 
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8/3/22  8:01 am
Commenter: disAbility Law Center of Virginia

dLCV Public Comment on CSH Variances
 

dLCV Opposes All Proposed Central State Hospital Variances
 

The disAbility Law Center of Virginia (dLCV) supports the secure and appropriate administration of services for patients at Central State Hospital (CSH). dLCV also supports the Virginia Human Rights Regulations and the dignity that they bring to patients and people with disabilities in the state. However, dLCV opposes the variances to the Human Rights Regulations that CSH is requesting.

Variance I: Communication

CSH seeks a broad variance to the Human Rights regulations that protect a patient’s right to private communications.  We oppose this broad variance and urge the continued practice of seeking individual restrictions only in the circumstances described in the regulations

The Human Rights Regulations give patients the right “to communicate privately with any person by telephone.” 12 VAC 35-115-50, Dignity, C7. CSH argues that it requires a variance to the Human Rights Regulations to prevent patients from plotting to escape, rioting, creating a hostage situation, or engaging in other illegal actions. CSH already has the right to limit communication if it would “result in demonstratable harm to the individual or significantly affect his treatment.” 12 VAC 35-115-50, Dignity, C7 (a). Escapes, riots, and hostage situations would harm the patient or his treatment through injuries sustained during the events and disruptions in therapy and treatments, and therefore qualify under the regulations. CSH is asking for a blanket waiver, which is in violation of the spirit and intent the Human Rights Regulations. The regulations weigh the need for safety was weighed against the need for dignity in treatment. If CSH would like to limit the communication of patients that are plotting illegal activities, it should be done on an individualized basis as the regulations require.

CSH states that it had a long-standing practice of requiring patients to open their mail in front of a staff member in order to prevent contraband from being brought into the facility. This practice fits the Human Rights Regulations that give patients “the right to communicate privately with any person by mail.” 12 VAC 35-115-50, Dignity, C6. The practice was ended at the suggestion of an individual from the Department of Corrections (DOC) who said it would be more secure if mail was opened by staff.

 

CSH should not seek a variance based on the advice of corrections officials. Patients at the hospital are not prisoners in a DOC facility.  They should not be treated as such.  Rather their treatment by CSH must be administered in accordance with regulations. CSH has a legal obligation to use the least restrictive method of limiting the rights of patients. Furthermore, CSH already has an exception to the regulations when there is “reasonable cause to believe that the mail contains illegal material or anything dangerous. If so, the director or their designee may open the mail, but not read it, in the presence of the individual.” 12 VAC 35-115-50, Dignity, C6(a). To reiterate, the regulations balance the need for security and dignity, and CSH must seek variances to the regulations on an individual basis.

Variance II: Money

CSH seeks a broad variance, prohibiting all use of money in the forensic unit.  We oppose.  We urge the continued practice of seeking individual restrictions only in the circumstances described in the regulations.

Patients have the right “to have and spend personal money.” 12 VAC 35-115-100, Restriction on freedom of everyday life, A1(c). CSH seeks to prohibit the possession of any form of money in the secure forensic program. The hospital states that it requires this variance in order to prevent coins from being used as weapons, as well as to prevent the use of money in facilitating an escape. CSH has an obligation to pursue alternative means before seeking a variance that completely overrules the Human Rights Regulations. Evidence has not been provided of attempts at the implementation of other less restrictive methods. A possible alternative is lockers that are controlled by patients and monitored by staff. Again, CSH must request a variance on an individual basis if they believe the individual is using money inappropriately. By requesting more restrictive measures, CSH is once again ignoring the freedoms patients are ensured under the Human Rights Regulations.

Variance III: Pat-downs

CSH seeks a broad variance to be able to do room searches and pat downs.  We oppose.  We urge the continued practice of seeking individual restrictions only in the circumstances described in the regulations.

Human Rights Regulations give patients the right to “basic respect for basic human dignity” and reasonable privacy. 12 VAC 35-115-20, Policy, A2 and 12 VAC 35-115-50 (C)(3a), Dignity. This language prevents pat-downs and room searches for patients. CSH seeks a variance to practice these procedures. However, the language of the proposed variance is confusing. CSH has not provided justification as to why the pat-down procedure is only being sought for non-forensic patients.  It is also unclear why pat-downs are necessary for group movement within the secure perimeter, but not for individual movement.  Furthermore, there is no rationale as to why the variance for searches of patients' bedrooms is generalized, while the pat-down procedure only applies to non-forensic patients. Once again, CSH should seek an individualized variance, and only for individuals who are found to have contraband. dLCV reiterates that these are patients in a treatment facility, not in a DOC facility. 

Variance IV: Complaint Process

CSH seeks a broad variance, to eliminate rights of maximum security patients to be able to use the human right complaint process. We oppose this.  CSH should, in fact, support the use of the process and seek limitations rarely and on an individual basis.

 

 

When a patient is in a Department of Behavioral Health and Developmental Services (DBHDS) facility and that facility violates their rights under the Human Rights Regulations, the patient first appeals to the director. 12 VAC 35-115-80 (A). If the patient does not agree with the director’s final decision, they can appeal to the Local Human Rights Committee (LHRC). 12 VAC 35-115-80 (A). This decision is then appealable to the State Human Rights Committee (SHRC). 12 VAC 35-115-210. The variance that CSH is requesting will not follow this procedure for the Maximum-Security Forensic Unit. Under the variance, if a patient does not agree with the director's decision, the patient can appeal to the CSH Maximum Security Appeals Committee and should receive a written response within 21 days. The committee would consist of the Chairperson and Vice-Chair of the SHRC and the DBHDS Director of the Office of Human Rights. The decision by the CSH Appeals Committee is not appealable. CSH states that it requires the variance because the nature of the Max Forensic Unit means that the patients generally have shorter stays, so patients need a more structured and quicker complaint process.

Since CSH was granted the variance initially, there have been problems with the new complaint process. Before continuing the variance, the hospital must show how it will address the following issues:  First, many patients at the facility have complained that the CSH complaint process takes longer than the 21 days that are proposed in the variance. This defeats the purpose of having a quicker process due to shorter stays. Second, the proposed variance has the possibility of leading to a greater chance of retaliation. One patient filed a complaint in federal court after he experienced retaliation from doctors at Central State Hospital for complaints that he made. See, Farabee v. Yaratha, No. 18-1952, 19 (4th Cir. 2020). The doctor intentionally provided another patient, known to have conflicts with the victim, greater access by keeping the two patients on the same ward with only one bed in between them and suggesting that the patient would be rewarded for attacking the victim. Farabee v. Yaratha, No. 18-1952, 19 (4th Cir. 2020).  The proposed variance would only enable similar abuses within the unit, with no meaningful appeal.  It is also not clear from the supporting documents how many complaints are received by the director and how many appeals are being made to the CSH Maximum Security Appeals Committee.

If the intent is really to streamline the process, CSH could seek this variance as an optional, alternative process, and offer it to all individuals, not just the Max Forensic Unit.  In that event, CSH should make clear that if they elect this process, the residents are waiving their right to appeal to the LHRC and SHRC. 

On All Variances

Throughout the proposed variations to the Human Rights Regulations, CSH has shown that it would prefer to treat patients as if they are prisoners. This is shocking.  The hospital needs to create a more therapeutic environment for patients, rather than a prison-like environment.

The Human Rights Regulations create a careful balance between the need for security and the need for dignity and respect. There already exists a process in the regulations that give CSH the ability to override a right on an individual basis when there is a security or safety concern. This process involves approval from the LHRC in order to ensure facilities are not violating patients’ human rights. A blanket variance would go against the very heart of these regulations.

The SHRC must be very concerned about CSH’s request for blanket variances that lead to no oversight or accountability. The committee is tasked with ensuring that patients in DBHDS facilities are treated with respect and dignity. By giving blanket variances, the Office of Human Rights cannot oversee the actions of CSH that fall under these variances.

The SHRC should find or develop a way to receive feedback from the patients that these variances would impact. The SHRC needs to hear directly from patients as to how these variances are being followed, and their impact on the patients. Patients are not informed of the variance proposals, and the proposals are located on an obscure website that is not well known to the public and is difficult to locate. Another issue for patients is that supporting documentation must be requested via email. Patients have limited computer time and may not have the technical skills necessary to navigate this process. Due to the lack of accessibility, it is impossible for patients to participate by sharing a public opinion. The SHRC must be concerned with the lack of input from patients on the variances.

Conclusion

When asking for a variance, CSH must show that complying with the Human Rights Regulations is non-feasible and prevents the delivery of service. CSH has not shown any attempts at less restrictive methods or evidence that complying with the Human Rights Regulations is preventing the delivery of service. CSH has not met the threshold of evidence in asking for the variance. CSH is asking for a right that they already have on an individual basis, but to expand this right with no oversight or evidence of necessity. Therefore, the proposal should be denied. If you have further questions regarding our concerns, please direct them to Robert Gray, dLCV Director of Compliance and Quality Assurance, at 804-662-7188 or Robert.gray@dlcv.org

Sincerely,

Colleen Miller

Executive Director 

 

CommentID: 124705