DEPARTMENT OF BEHAVIORAL HEALTH AND DEVELOPMENTAL SERVICES

Proposed Variances to 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 (DBHDS) (12VAC35-115).

Notice of action: The Department of Behavioral Health and Developmental Services (DBHDS), in accordance with Part VI, 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 a decision by the State Human Rights Committee (SHRC) on an application for proposed variances to the Human Rights Regulations submitted to the SHRC. The purpose of the regulations is to ensure and protect the legal and human rights of individuals receiving services in facilities or programs operated, licensed, or funded by DBHDS.

Each variance references the specific part of these regulations to which a variance is needed, the proposed wording of the substitute rule or procedure, and the justification for a variance. Such variance also describes time limits and other conditions for duration and the circumstances that will end the applicability of the variance. All variances are approved for a specific time period. The variances must comply with the general requirements of Part VI, Variances (12VAC35-115-220), of the Human Rights Regulations.

Purpose of notice: Following publication of the request for these variances in the Register on September 16, 2019, a public comment period was held from September 16, 2019, through October 16, 2019. One comment was received. After considering all available information, at its meeting on November 21, 2019, the SHRC voted to approve the application for proposed new variances to the Human Rights Regulations for DBHDS’ Central State Hospital (CSH). The variances were approved for a three-year period with annual updates to the SHRC and quarterly updates to the local human rights committee (LHRC).

I.  Variance is approved to the following sections:

12 VAC 35-115-150: General Provisions

12 VAC 35-115-175: Human Rights Complaint Process

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

12 VAC 35-115-190: Special Procedures for Emergency Hearings by the 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

Explanation: The CSH variances to the above allow alternative procedures for addressing complaints by individuals in maximum security when the individual is not satisfied with the director’s response, so that the individual may appeal to the CSH Maximum Security Appeals Committee.

II. Variance is approved to the following section:

12 VAC 35-115-100, Restrictions on Freedoms of Everyday Life, A1 (c), “freedom to have and spend personal money.”

Explanation: Individuals who are receiving hospitalization under the civil admissions process in the maximum security perimeter may not keep any form of money on their person. The CSH variance to this regulation allows non-forensic patients to purchase items in a canteen and from external providers; however, individuals may not have money on their person.

III. Variance is approved to the following sections:

12 VAC 35-115-20 A2, Policy, “Each individual who receives services shall be assured respect for basic human dignity.”

12 VAC 35-115-50 C3 (a), Dignity, “each individual has the right to … reasonable privacy….”

Explanation: CSH cannot fulfill its duty to provide a safe environment for individuals who are high-risk in a secure forensic program through less intrusive means than routine “pat downs” of fully clothed individuals and proactive searches of individuals’ bedroom areas. The CSH variance to these regulations allows for routine pat downs of non-forensic individuals before and after group movement: within a secure perimeter; anytime an individual leaves the secure perimeter; any time an individual has physical access to a visitor who is not an employee of CSH; and, allows proactive routine searches of individuals’ bedrooms to identify contraband or breaches of safety and security.

IV. Variance is approved to the following sections:

12 VAC 35-115-50, Dignity:

C(6), “each individual has the right to… communicate privately with any person by mail and have help in writing and reading mail, as needed.”

C6 (a), “An individual’s access to mail may be limited only if the provider has reasonable cause to believe that the mail contains illegal material or anything dangerous.  If so, the director or his designee may open the mail, but not read it, in the presence of the individual.”

C7, “each individual has the right to… communicate privately with any person by telephone and have help in doing so.”

C7 (a), “An individual’s access to the telephone may be limited only if, in the judgment of a licensed professional, communication with another person will result in demonstrable harm to the individual or significantly affect his treatment.”

Explanation: The CSH variance to these regulations allows for staff to open but not read mail and packages in the presence of the individual in the maximum security program. The CSH variance also restricts individuals in the maximum security forensic program from communicating with each other by mail or telephone.

Contact Information: Deborah Lochart, Director, Office of Human Rights, Department of Behavioral Health and Developmental Services, 1220 East Bank Street, P.O. Box 1797, Richmond, VA 23218-1797, telephone (804) 786-0032, FAX (804) 804-371-2308, or email deb.lochart@dbhds.virginia.gov.