DEPARTMENT OF BEHAVIORAL HEALTH AND DEVELOPMENTAL SERVICES

Proposed Renewal of Variances to 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 IV. 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 the following application for renewal of existing variances to the Human Rights Regulations that are presently before the State Human Rights Committee (SHRC) for consideration. The purpose of the regulations is to ensure and protect the legal and human rights of individuals receiving services in facilities or programs licensed, funded, or operated by DBHDS.

After considering all available information, including comments, the SHRC will issue a written decision deferring, disapproving, modifying, or approving each renewal application. The decision and reasons behind it will be published in a later issue of this Register.

Purpose of notice: DBHDS is seeking comment on the applications for renewal of the following existing variances to the Human Rights Regulations at the DBHDS Virginia Center for Behavioral Rehabilitation (VCBR). The variance applications for renewal demonstrate compliance with the general requirements of Part IV. Variances (12VAC35-115-220), of the Human Rights Regulations.

Variance to Complaint Procedure:

The Human Rights Regulations provide a comprehensive complaint resolution process that includes access to a Local Human Rights Committee (LHRC) and the SHRC, articulated in the regulation sections specified below:

• 12 VAC 35-115-150: General Provisions

• 12 VAC 35-115-170: Formal Complaint Process

• 12 VAC 35-115-180: Local Human Rights Committee Hearing and Review Procedures

• 12 VAC 35-115-190: Special Procedures for Emergency Hearing by LHRC

• 12 VAC 35-115-200: Special Procedures for LHRC Reviews Involving Consent and Authorization

• 12 VAC 35-115-210: State Human Rights Committee Appeals Procedure

VCBR Facility Instruction No. 202, Resident Complaint Resolution, provides alternative procedures for addressing resident complaints to be followed in lieu of those specified in the above regulatory sections. VCBR’s variances to these regulations are reviewed by the SHRC at least annually, with VCBR providing reports to the SHRC regarding the variances as requested.

Variance for rooms within medical unit with no windows:

VCBR has four bedrooms in its medical unit that do not meet the requirement of the italicized portion of the following regulation:

• 12 VAC 35-115-50 C 3 (d): Live in a humane, safe, sanitary environment that gives each individual, at a minimum, windows or skylights in all major areas used by individuals.

VCBR requests a variance to this regulation to enable it to utilize these bedrooms if a bedroom that meets the requirement is not available on a unit that meets an individual’s needs.  VCBR currently provides a monthly report to the SHRC on how many times rooms with no windows within the medical unit of VCBR are used during the previous month and will continue to do so.

Variance for double bunking:

Following the mandate by the General Assembly (Chapter 806 of the 2011 Acts of Assembly), VCBR implemented double-bunking (two individuals residing in a single room). Although VCBR has attempted to maintain residents’ privacy and a physical environment free from bad odors, this is not always possible.  For this reason, VCBR requests a variance to the regulations listed below:

12 VAC 35-115-50 C 3 (a) and (e):

a) Reasonable privacy and private storage space

e) Clean air, free of bad odors

VCBR Facility Instruction No. 124, Resident Housing Assignment, describes how residents’ housing assignments are determined and shall substitute for these regulations. VCBR provides a monthly report to the SHRC on how many residents are double-bunked, complaints received by residents regarding double-bunking, and any medication sessions treatment staff hold with roommates to resolve concerns related to double-bunking.

Public comment period: December 25, 2017, through January 25, 2018.

How to comment: DBHDS 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 by the last day of the comment period. All information received is part of the public record.

To review a proposal: The applications for variance and any supporting documents may be obtained by contacting the DBHDS representative named below.

Contact Information: Deborah Lochart, Director, Office of Human Rights, Department of Behavioral Health and Developmental Services, P.O. Box 1797, Richmond, VA 23218-1797, telephone (804) 786-0032, FAX (804) 804-371-2308, TDD (804) 371-8977, or email deb.lochart@dbhds.virginia.gov.