November 28, 2018

Kristen Peterson, Regulatory Coordinator

Department of Juvenile Justice

PO Box 1110

Richmond, VA 23218-1110

RE: Regulations for Nonresidential Services

Dear Ms. Peterson,

The disAbility Law Center of Virginia (dLCV), the Commonwealth’s federally mandated protection and advocacy system, respectfully submits the following public comment in relation to the Department of Juvenile Justice’s (DJJ’s) periodic review of its Regulations for Nonresidential Services. We strongly urge DJJ to amend these regulations to better protect the health, safety, and welfare of children receiving nonresidential services throughout Virginia. Amendments should:

• Prohibit the use of restraint that is used for avoiding “extreme destruction of property.” Use of restraint under these regulations should be limited to instances that pose a risk to the safety of the resident, others, or the public.
• Prohibit the use of prone restraint or any other type of restraint that restricts breathing.
• Align the reporting requirements in section 6VAC35-150-210 (B) with those already required in section 6VAC35-150-575 (A)(2).

Currently the Regulations for Nonresidential Services allow nonresidential programs and services to physically restrain children for the purpose of “avoid[ing] extreme destruction of property.” The Department of Behavioral Health and Developmental Services (DBHDS) also has regulations on the use of restraint by DBHDS service providers. The focus of the use of restraint and seclusion under the DBHDS regulations is solely to prevent self-injurious behaviors or behaviors that are dangerous to others. 12VAC35-115-110 (C)(1) (Providers must document in an individual’s service record what interventions may be used when a behavior becomes a danger to the individual or others); 12VAC35-115-110 (C)(7) (Providers shall not use restraint unless less restrictive techniques did not or would not succeed in reducing or eliminating behaviors that are self-injurious or dangerous to other people). Restraint is a harmful practice that can result in trauma and physical harm to both the restrained individual and those conducting the restraint. Similar to DBHDS services, the focus of nonresidential services and programs is treatment. As such, the Regulations for Nonresidential Services should also only allow for restraint when there is a risk to safety in an individual or others.

Additionally the Regulations for Nonresidential Services should be amended to prohibit the use of prone restraint or any other type of restraint that restricts breathing. Prone restraint or any restraint that restricts breathing are high-risk and can cause positional asphyxiation and death. Such restraints are a dangerous practice and many laws and regulations ban their use. For example, DBHDS regulations prohibit service providers from using prone restraint. 12VAC35-115-110 (C)(6).

The recent death of a teenager proximate to restraint at North Spring Behavioral Healthcare, a provider licensed under the DBHDS’s Regulations for Children’s Residential Facilities, serves as an important reminder of the very real risks associated with restraint use. The teenager, died from positional asphyxiation. This past summer another teenager suffered spinal injuries resulting from an improperly executed restraint at North Spring Behavioral Healthcare.

Detailed documentation of restraint incidents is vital in allowing staff to debrief and learn how to reduce restraint use. The Regulations for Nonresidential Services currently provide different standards for reporting and documenting restraint use for Court Service Units (CSU) and for nonresidential services and programs. CSU are only required to report use of physical force in writing to the CSU director. 6VAC35-150-210. Programs and services however are required to fully document physical restraint in the juvenile’s record including the staff involved, justification for the restraint, and less restrictive interventions attempted. 6VAC35-150-575. Physical force used at CSUs should be documented in the manner required under section 6VAC35-150-575.  

DJJ should promptly amend the Regulations for Nonresidential Services to better protect the health, safety, and welfare of children being served by these services and programs throughout Virginia. Thank you for your thoughtful consideration of dLCV’s public comment.

Sincerely,

Colleen Miller

Executive Director