June 20, 2023

Director Taneika Goldman

Office of Human Rights

Virginia’s Department of Behavioral Health and Developmental Services

1220 Bank Street

Jefferson Building, 4th Floor

Richmond, VA 23219-3645

Re:  dLCV’s Comment on the Proposed Guidance Document OHR 01

Dear Director Goldman:

On behalf of the disAbility Law Center of Virginia (“dLCV”), I would like to thank you for the opportunity to comment on Virginia’s Department of Behavioral Health and Developmental Services’ (“DBHDS”) Proposed Guidance Document, titled: “Reporting Peer-on-Peer Aggressions as Potential Neglect.” As the designated Protection and Advocacy System for the Commonwealth of Virginia, dLCV routinely works with people with disabilities receiving services in Virginia — both in the context of DBHDS-operated facilities and amongst DBHDS-funded and licensed providers in the community.

In light of our extensive work with DBHDS and, particularly, the Office of Human Rights, dLCV would like to bring several concerns to your attention. For the sake of clarity, dLCV’s comments on the Guidance Document are in the order as the issues appear in document.

1. dLCV’s Concerns and Recommendations

This guidance is intended to clarify the reporting requirements to the Office of Human Rights (OHR) for peer-on-peer aggressions that occur in licensed or DBHDS-funded community provider settings based on 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] (“Human Rights Regulations”).

According to the excerpt above, the Guidance Document only applies to “licensed or DBHDS-funded community provider settings.” However, as referenced in 12VAC35-115, , cited above, the Human Rights Regulations apply to “Services from Providers Licensed, Funded, or Operated by the Department of Behavioral Health and Developmental Services.” In omitting providers “operated” by DBHDS and adding the qualifier of “community,” the Guidance Document narrows the application’s scope and unnecessarily creates confusion amongst providers and the public. We strongly recommend DBHDS explicitly include DBHDS-operated providers in this guidance.

“Allegation” is not a defined term; however,

While “Allegation” is not defined in the proposed guidance or in 12VAC35-115-30, it is our observation that failing to define this term has led to confusion among providers and clients about what constitutes an Allegation. In failing to provide appropriate guidance of what constitutes an “allegation,” DBHDS is further opening the door to arbitrary gatekeeping of when a CHRIS report of peer-on-peer aggression is actually filed by providers. As a result, there are likely to be incidents that do, in fact, constitute “neglect,” but are simply not reported by providers due to the lack of overall clarity in guidance. dLCV recommends an amendment to clarify what reasonably constitutes an “allegation” pursuant to the Human Rights Regulations in Virginia Administrative Code.

“Provider” means any person, entity, or organization offering services that is licensed or funded by the department.

In citing the defined term in 12VAC35-115-30, DBHDS incorrectly defines the term “provider.” Pursuant to code, a “provider” is “… any person, entity, or organization offering services that is licensed, funded, or operated by the department.” The omission of “operated” is unwarranted, limits the scope of the Guidance Document,  and creates unnecessary confusion.

In Fiscal Year 2022, licensed community providers reported a total of 8,708 complaints alleging neglect via CHRIS. Providers specifically coded 63% (5,542) of these complaints as alleged “Peer to Peer Neglect.” Of these “Peer to Peer Neglect” reports, less than 2% (121) were ultimately determined to be a violation of an individual’s right to be free from neglect while receiving services. The high volume of reports compared to the low number of substantiated neglect violations is an indication that the vast majority of peer-on-peer incidents of aggression are not the result of neglect.

Despite the fact that less than 2% of peer-to-peer neglect reports were found to be substantiated, it is not necessarily true “that the vast majority of peer-on-peer incidents of aggression are not the result of neglect.” We have seen many instances in which providers have ignored fact patterns that clearly support a finding of neglect, in order to make an “unsubstantiated” finding. While we understand that many of these reports do not indicate neglect, the idea that they do not deserve scrutiny is deeply concerning.

Incidents of peer-on-peer aggression that are determined to be reportable after a review by the provider shall be entered in CHRIS within 24 hours of this determination.

The Guidance Document fails to say precisely how long a provider has to make this “review” determination. As such, dLCV believes additional guidance is warranted in an effort to mitigate unreasonable delays in filing of these reports, which could potentially run counter to Virginia Administrative Code.

If at any time the provider has reason to suspect that an incident may be a crime, or is otherwise reportable to another entity, the provider shall report the incident to all appropriate authorities in addition to its reporting requirements to the department. Such instances may include the following:

• An incident between peers involving sexual assault, which is a form of violence and includes forced groping and rape;
• An incident involving unwanted sexual activity between minors (e.g., intercourse, kissing, touching of private areas); or
• An incident involving sexual intercourse or other sexual activity between adult peers in which at least one individual is deemed to lack capacity based on an existing assessment that indicated the individual was at risk of exploitation.

By saying what “may” constitute a reportable incident, DBHDS implies that all the specified examples are subject to a provider’s discretion of whether or not to report said incident. In fact, every example cited should be mandated reports.  The proper language should be “does include.”  Also, DBHDS should make clear that severely questionable incidents like those above do not need to be substantiated for a report to be filed in CHRIS.  We recommend adding the word “alleged” to the listed examples.

We also recommend adding a sentence to clarify that “this list is not exhaustive, as other incidents may meet the mentioned requirements, and, hence, a report should be filed in CHRIS.”

2. Conclusion

In light of dLCV’s aforementioned concerns, we believe additional revisions and updates are warranted for the sake of clarity regarding this Guidance Document. The current language is likely to confuse providers at best and, at worst, give providers an opportunity to fail to report clear instances of neglect. In addition to the specific language recommendations above, we recommend that DBHDS reinforce specific examples of what they are looking for, rather than broadly limiting reporting.  By clarifying expectations, we believe the reporting burden could be reduced while still allowing for the collection of important data.   

As always, please do not hesitate to reach out if dLCV can be of further assistance in clarifying our concerns and be of any assistance in ameliorating these concerns.

Sincerely,

Colleen Miller

Executive Director