There is language regarding patient “preference” va patient “choice”.  This could be difficult to implement or enforce because preferences are beliefs/feeling that may or may not be articulated, while choices are actions (and are concrete, apparent and evident).

There is also removal of restrictions on visitors and phone usage during the first 7 days of a stay.  This removal applies only to facilities that treat SUD and not MH or intellectual (now developmental) disabilities.  

Please consider changing the title of the human rights staff. Advocate indicates the staff will advocate for me, but that is not what the office of human rights staff do. The staff advocate for the regulations, not me. The advocate title can also be confused with legal advocates, but the office of human rights staff don't help with legal matters. This is confusing and frustrating for constituents receiving services when we call for help with legal matters and the office of human rights staff can't help.   

dLCV Opposes Some Proposed Changes to the Human Rights Regulations
 

The disAbility Law Center of Virginia (dLCV) is the officially designated “protection and advocacy agency” (P&A) of Virginia. dLCV operates under federal statutes[1] which charge the agency with protecting and advocating for the human and legal rights of people with disabilities. dLCV supports many of the proposed changes to the Human Rights Regulations. However, some concern us. These concerns are laid out below.

1. 12VAC35-115-30. Definitions.

dLCV does not support the new definition of “program rules.” We are concerned about the removal of the requirement that “[p]rogram rules may be included in a handbook or policies and shall be available to the individual.” Not explicitly requiring that providers make rules available to individuals concerns us, as it seems at odds with the program rules including “any expectation that produces a consequence for the individual within the program.” Knowing that individuals could receive consequences without the rules being made available to them strikes us as unfair and potentially prejudicial.  While we are aware that other sections of the Regulations do state that rules must be made available to residents, those sections are more difficult to find and have less explicit wording. We believe this issue is so important as to require definitional clarification.

Under the definition of “serious injury,” the dLCV would recommend adding emergency room staff to the list of qualifying parties to administer medical attention in order to make the list more comprehensive.

2. 12VAC35-115-50. Dignity.

dLCV is concerned about the change to Section C(3)(a) in adding the following caveat: “Reasonable privacy and private storage space based on each individual’s needs and service setting.” We are concerned that hospitals without proper equipment and space may underserve their patients by saying that the hospital’s service setting does not allow for privacy and storage. Instead, we recommend that this language be changed to “Reasonable privacy and private storage space based on each individual’s needs and Individualized Service Plan.”

dLCV does not support section D(5)’s limitation on requiring approval for restrictions only in cases that have already lasted longer than seven days. We would instead recommend that this section read “that has lasted (or is likely to last) longer than seven calendar days.” This same language appears in 12VAC35-115-100, Restrictions on Everyday Life, and will better serve patients by requiring approval for all major restrictions in advance of their implementation and making sure LHRC referrals are timely.

3. 12VAC35-115-90. Access to and amendment of service records.

dLCV believes it would be more in keeping with the other amendments made here to change the last sentence of section C(2)(a) to “The provider shall also provide the individual with as much of his services records as he can (to include redacted records) without risking harm to the individual or any other person.”

4. 12VAC35-115-100. Restrictions on freedoms of everyday life.

dLCV would recommend adding clarity by rewording section A(1)(d) to “Freedom to enjoy and otherwise utilize television, radio, books, newspapers, individual music players, and web-based resources, whether the media is privately owned or in an area of the service setting available to individuals receiving services.”

               We would also recommend that section B(7)(e) be expanded. Currently, the amendments add that the OHR advocate must be notified when rules are changed, but not individuals. We recommend that individuals also be notified when rules are changed.

5. 12VAC35-115-145. Determination of capacity to give consent or authorization.

dLCV recommends adding to this section a statement that a preadmission screening cannot be considered a capacity evaluation. This would help to clarify the difference between the two types of evaluation and better serve individuals whose capacity is being determined. Additionally, dLCV recommends stating the requirement that two doctors are required to certify a finding of incapacity and one doctor to make a finding of capacity here. Again, this will clarify the process involved in determining capacity and will help better serve the individuals whose capacity is being determined.

6. 12VAC35-115-146. Authorized representatives.

dLCV seeks clarification on section C(1)(a). We are curious whether this change (and the same changes made later in 12VAC35-115-200) is intended to take away power from the LHRC and give it to the Office of Human Rights. We have no recommendation here, but are simply seeking clarification.

dLCV does not support the elimination of the requirement in section I that consultation with individuals about their preferences be documented. We believe that it better serves everyone to have these communications be documented.

7. 12VAC35-115-175. Human rights complaint process.

dLCV does not support the change that requires all complaints to be brought within one year of the alleged violation. We believe that this does not correctly balance the interests of parties. Requiring complaints to be brought within a year may prevent parties from accessing justice, especially considering that many of these individuals may still be institutionalized one year after the potential violation. This institutionalization may make it harder for individuals to file complaints. These individuals are institutionalized as a means of helping them become clinically stable; requiring them to bring human rights complaints while they are still in a state of instability is unjust and may lead to suboptimal outcomes. For these reasons dLCV suggests excluding a time limitation on human rights complaints.

               dLCV does not support the change to move part H to Section 12VAC35-115-260. While we believe it makes sense to place this duty in the “Provider and Department Responsibilities” section, removing it from the “Human Rights Complaint Process” section may create confusion and lead directors to believe they do not need to fully cooperate with abuse or neglect complaint investigations.

               Thank you for opportunity to comment on these regulations. If you have further questions regarding our concerns, please direct them to Robert Gray, dLCV Director for Compliance and Quality Assurance, at robert.gray@dlcv.org. 

Sincerely,

Colleen Miller

Executive Director