Sept
September 7, 2021
Ruth Ann Walker, Director of Regulatory Affairs
Virginia Department of Behavioral Health and Developmental Services
Jefferson Building
1220 Bank Street, 4th Floor
Richmond, VA 23219
RE: disAbility Law Center of Virginia Public Comment on Periodic Review of § 12VAC-35-210
Dear Ms. Walker:
On behalf of the disAbility Law Center of Virginia (dLCV) and the people we serve, I write to comment on the periodic review of § 12VAC-35-210, “Temporary Leave from State Facilities.” As the designated Protection and Advocacy system for individuals with disabilities in Virginia, dLCV appreciates the opportunity to provide feedback on this review.
Section 12VAC35-210-50 (Trial visits) states that “[a]ll plans for trial visits shall be documented in the ISP and include consideration of . . . . The individual's essential support needs and supervision requirements” along with an individual’s stated preferences. dLCV has encountered a troubling trend in recent years of treatment teams failing to complete Uniform Assessment Instruments (UAIs) and other empirical assessments to help guide the team in determining an appropriate placement type. dLCV’s experience is that the treatment team often recommends a higher level of care than the individual actually wants or needs. The regulations should clearly state that an individual shall be placed in the least restrictive setting possible, given the individual’s current, measured needs, and the individual’s preferences.
In addition, this regulatory section does not address “virtual visits” or the extent to which such visits may be used in lieu of in-person visits. During the COVID pandemic, many individuals were effectively barred from visiting potential placements due to disease precautions. Even before the pandemic, however, dLCV had seen many hospitals promote virtual visitation over in-person visitation, due to staffing limitations, proximity to the placement, and challenges with discharging the individual. The Commonwealth should make explicitly clear that virtual visits are not an adequate substitute for in-person visits, and that in-person visitation should be promoted whenever it is safe to do so, pursuant to the individual’s wishes.
Finally, § 12VAC35-210-90 (Failure to Return to Training Centers) assumes that every individual has an authorized representative (AR) who must consent to visitation on their behalf. Not all individuals with ID/DD have or need these supports, and may be their own decision makers. The regulation should be changed to reflect this.
Sincerely,
Colleen Miller
Executive Director