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 has reviewed the newly proposed draft of the proposed changes to the Human Rights Regulations. We are concerned to see that updates were not made in response to our prior concerns. 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,” 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(3)’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. 12VAC35-115-100. Restrictions on freedoms of everyday life.

               dLCV would 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.

4. 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.

5. 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.

6. 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 your consideration of our comment. Please contact Robert Gray at robert.gray@dlcv.org with any questions. 

Please reconsider the proposed change to the new E.6. of 12VAC35-115-175 Human rights complaint process from a total of 20 days to a total of 10 days for A/N/E investigations. Ten days is a very short time period to complete a thorough investigation and determine corrective actions. We are already required to put precautionary measures in place to protect the individual upon receipt of the allegation, so shortening the timeframe for the full investigation does not add any protective benefit to the individual, nor does it reduce regulatory burden on us as the provider. If anything, this increases burden by hastening an already quick timeline. It is also a discredit to the spirit of the investigation process, which can often involve many staff interviews, documentation reviews, and meetings with program and department leadership to determine an action plan that will actually prevent recurrence. The purpose of an investigation should not just be a simple yes/no on whether it's founded or not, but also quality improvement. Please consider leaving this as is. 

Thank you.

1. 12VAC35-115-90 Access to and amendment of service records

               While we agree the release of medical or mental health information to an individual should be done so limiting the risk of harm, we as a private provider organization are not able to enforce this upon any licensed medical professional or licensed mental health professional. The provisions for such release of documents are managed by and regulated via HIPAA. HIPAA is federal law and a federal standard therefore OHR would not be able to enforce such requirements on medical or mental health professionals either.

2. 12VAC35-115-260 Provider and department responsibilities

               Private providers are required to provide competency-based training initially and annually thereafter in several areas, but specifically for the purpose of this comment, abuse and neglect investigations are covered in the annual human rights training. Per the regulation staff are required to achieve a score of 80% or higher as evidenced by testing and certification in order to successfully complete said training. The proposed requirement to have competency-based training initially and annually provided by DBHDS is not attainable. The department does not have the bandwidth to sustain such training and only provides a certain amount of training; has limited trainers (one currently); and does not allow for the appropriate number of staff to be trained at hire and annually thereafter.

3. 12VAC35-115-175 F Investigations

               Each private provider organization is required to have designated staff complete OHR approved investigation training. As such, the Director or designee has the ability and knowledge to conduct all investigations and determine findings related to those investigations. These findings are then reported into the CHRIS system within the allotted 10-day timeframe at which point OHR reviews and has the ability to determine appropriate next steps, based on each individual case. Citations are then issued related to the review of OHR. Private providers are required to create and implement their own internal policies and procedures regarding investigations as set forth in DBHDS OHR regulation. These internal policies and procedures are reviewed and approved by DBHDS thus there is no additional necessity for the Director or designee to maintain any additional file. The request to have Directors or designees maintain an additional file would not be in alignment with the Governor’s request to reduce regulatory burden by 25%, but would rather increase this burden.

4. 12VAC35-115-146. Authorized Representative

               The proposed changes in this section imply that an organization should exhaust all aspects of an individual’s family tree prior to looking at a next friend as an option for an authorized representative appointment. As such, the Director or designee would be required to track all such inquires into the individuals family tree which is often not provided or available. In such circumstances where a next friend appointment is necessary, that process would be significantly slowed by the proposed requirement seeking LHRC approval.

1. 12VAC35-115-90 Access to and amendment of service records

            While we agree the release of medical or mental health information to an individual should be done so limiting the risk of harm, we as a private provider organization are not able to enforce this upon any licensed medical professional or licensed mental health professional. The provisions for such release of documents are managed by and regulated via HIPAA. HIPAA is federal law and a federal standard therefore OHR would not be able to enforce such requirements on medical or mental health professionals either.

2. 12VAC35-115-260 Provider and department responsibilities

            Private providers are required to provide competency-based training initially and annually thereafter in several areas, but specifically for the purpose of this comment, abuse and neglect investigations are covered in the annual human rights training. Per the regulation staff are required to achieve a score of 80% or higher as evidenced by testing and certification in order to successfully complete said training. The proposed requirement to have competency-based training initially and annually provided by DBHDS is not attainable. The department does not have the bandwidth to sustain such training and only provides a certain amount of training; has limited trainers (one currently); and does not allow for the appropriate number of staff to be trained at hire and annually thereafter.

3. 12VAC35-115-175 F Investigations

            Each private provider organization is required to have designated staff complete OHR approved investigation training. As such, the Director or designee has the ability and knowledge to conduct all investigations and determine findings related to those investigations. These findings are then reported into the CHRIS system within the allotted 10-day timeframe at which point OHR reviews and has the ability to determine appropriate next steps, based on each individual case. Citations are then issued related to the review of OHR. Private providers are required to create and implement their own internal policies and procedures regarding investigations as set forth in DBHDS OHR regulation. These internal policies and procedures are reviewed and approved by DBHDS thus there is no additional necessity for the Director or designee to maintain any additional file. The request to have Directors or designees maintain an additional file would not be in alignment with the Governor’s request to reduce regulatory burden by 25%, but would rather increase this burden.

4. 12VAC35-115-146. Authorized Representative

            The proposed changes in this section imply that an organization should exhaust all aspects of an individual’s family tree prior to looking at a next friend as an option for an authorized representative appointment. As such, the Director or designee would be required to track all such inquires into the individuals family tree which is often not provided or available. In such circumstances where a next friend appointment is necessary, that process would be significantly slowed by the proposed requirement seeking LHRC approval.

1. 12VAC35-115-90 Access to and amendment of service records

            While we agree the release of medical or mental health information to an individual should be done so limiting the risk of harm, we as a private provider organization are not able to enforce this upon any licensed medical professional or licensed mental health professional. The provisions for such release of documents are managed by and regulated via HIPAA. HIPAA is federal law and a federal standard therefore OHR would not be able to enforce such requirements on medical or mental health professionals either.

2. 12VAC35-115-260 Provider and department responsibilities

            Private providers are required to provide competency-based training initially and annually thereafter in several areas, but specifically for the purpose of this comment, abuse and neglect investigations are covered in the annual human rights training. Per the regulation staff are required to achieve a score of 80% or higher as evidenced by testing and certification in order to successfully complete said training. The proposed requirement to have competency-based training initially and annually provided by DBHDS is not attainable. The department does not have the bandwidth to sustain such training and only provides a certain amount of training; has limited trainers (one currently); and does not allow for the appropriate number of staff to be trained at hire and annually thereafter.

3. 12VAC35-115-175 F Investigations

            Each private provider organization is required to have designated staff complete OHR approved investigation training. As such, the Director or designee has the ability and knowledge to conduct all investigations and determine findings related to those investigations. These findings are then reported into the CHRIS system within the allotted 10-day timeframe at which point OHR reviews and has the ability to determine appropriate next steps, based on each individual case. Citations are then issued related to the review of OHR. Private providers are required to create and implement their own internal policies and procedures regarding investigations as set forth in DBHDS OHR regulation. These internal policies and procedures are reviewed and approved by DBHDS thus there is no additional necessity for the Director or designee to maintain any additional file. The request to have Directors or designees maintain an additional file would not be in alignment with the Governor’s request to reduce regulatory burden by 25%, but would rather increase this burden.

4. 12VAC35-115-146. Authorized Representative

            The proposed changes in this section imply that an organization should exhaust all aspects of an individual’s family tree prior to looking at a next friend as an option for an authorized representative appointment. As such, the Director or designee would be required to track all such inquires into the individuals family tree which is often not provided or available. In such circumstances where a next friend appointment is necessary, that process would be significantly slowed by the proposed requirement seeking LHRC approval.

115-50.D.5, 115-230.B.3

While the intent is to remind providers of mandated reporter responsibilities, there is a concurrent lack of clarity on expectations. In no small part, this relates to the distinctly different thresholds for viewing an event as potential abuse, neglect, or exploitation across OHR, APS, and CPS, with the foremost classifying more events as potential maltreatment requiring investigation. If the intent of the added standards is to encourage providers to contact APS or CPS whenever an allegation is made based on these Human Rights regulations, a significant number of unnecessary reports may be made to social services. However, if the expectation is for providers to report founded allegations to social services (as a finding indicates a person is the victim of abuse, neglect, or exploitation), then providers will be out of compliance with their mandated reporter requirements both by being late and by having investigated prior to this notification. It is highly recommended that to truly streamline, OHR consult with APS and CPS and increase alignment in expectations for notification to APS and CPS and thresholds for considering an event to be potential abuse, neglect, or exploitation.

115-90 Thank you for using this opportunity to better align with other, similar regulations regarding access to records.

115-145

Unfortunately, changes make an already complex requirement more difficult to implement and are less clear than before. The specification in 145.B that an “attending physician” shall both conduct a capacity evaluation (i, ii, iii) AND obtain written certification from a capacity reviewer who conducted an evaluation (iv) is confusing and implies the following:

• A new requirement - two people need to assess the individual as lacking capacity, not just one
• That a provider has an attending physician on staff OR that the individual’s PCP (if a physician, not a physician extender) will both conduct this evaluation and provide the information as specified in H. However, B.2 clearly states that the evaluator is not otherwise currently involved in the treatment of the individual, meaning that a PCP, or attending physician is not allowed to conduct this evaluation under typical circumstances. Of note, few of the services licensed by DBHDS involve having a physician on staff.
• That a provider has ready access not only to an attending physician, but also that the attending physician has ready access to capacity reviewers.

115-145 also does not simply or clarify other, long-standing issues:

• B.2 is inconsistent with expectations set forth by APS when a capacity evaluation is sought. APS prefers the person conducting a capacity evaluation be someone who does work with the individual.
• Does not speak to responsibility to pay for capacity evaluation(s). While the burden to obtain the evaluation is on the provider, most providers do not have these persons on staff. Health insurance may not cover these evaluations.
• While the content of capacity evaluations specified in H makes sense, providers rarely have input into the format of assessments; the content is driven by the evaluator. A provider might create a form for this purpose (which does not serve to streamline), however, evaluators are not obliged to use such forms. Increasingly, there are charges affiliated with such administrative requests, and they are not covered by insurance.
• While the clarification that Co-ARs are not allowed provides a path to resolve differences of opinions, it does not respect roles such as parents of adult service recipients where both had equal say when their child was a minor.

115-175

C.8 - while the investigation timeline is not overtly changed, requiring the final decision and action plan be provided to the individual and authorized representative in writing within ten business days shortens the time available for the investigation. Post-investigation time continues to be required for the distribution of the outcome information. This applies to E.6.d as well.

F.3 - while it is desirable to resolve a complaint as quickly as possible, doing so may be impeded by the requirement to investigate complaints that do not rise to the level of allegations of abuse, neglect, or exploitation.

Thank you for the requirements outlined in 115-180.G and 115-210.F

115-260

A.7 This additional requirement is unclear and does not appear to serve to simplify or streamline requirements.

A.9 Also does not simplify or streamline requirements. Rather, it adds requirements for both providers and DBHDS. As the training provided by DBHDS is the only one accepted by the Department, it is the Department’s responsibility to ensure it is competency based. Similarly, OHR’s training may need to be offered more than four times per year to accommodate the need. Expecting providers to develop this training ignores the reality that most providers have only one or two trained investigators; these would also be the people to develop a competency-based training. A better alternative may be for the OHR’s Look Behind process to include an evaluation of investigator competency, with technical assistance offered or recommendations for remedial training if indicated.

A.12 - specify that this notification is done via updating contacts in the current web-based application and ensure CHRIS or CONNECT are able to be used for this purpose.

B.1 - it is an unrealistic additional burden for all staff members to “read” this entire chapter. This does not simplify the process and is not likely to result in notable improvement in understanding of the Human Rights requirement as applied in day-to-day service delivery. The regulations include information about rarely encountered events (e.g., variances, appeals) and the information is not written in language that is accessible to many staff members. There is already a requirement for competency-based training. This new requirement increases administrative burden and will not serve to streamline, clarify, or simplify knowledge of Human Rights regulations and related requirements. Perhaps DBHDS could develop a training module viewed appropriate for the majority of staff members to standardize information presented to staff at all levels within a provider’s structure.

1. 12VAC35-115-90 Access to and amendment of service records

            While we agree the release of medical or mental health information to an individual should be done so limiting the risk of harm, we as a private provider organization are not able to enforce this upon any licensed medical professional or licensed mental health professional. The provisions for such release of documents are managed by and regulated via HIPAA. HIPAA is federal law and a federal standard therefore OHR would not be able to enforce such requirements on medical or mental health professionals either.

2. 12VAC35-115-260 Provider and department responsibilities

            Private providers are required to provide competency-based training initially and annually thereafter in several areas, but specifically for the purpose of this comment, abuse and neglect investigations are covered in the annual human rights training. Per the regulation staff are required to achieve a score of 80% or higher as evidenced by testing and certification in order to successfully complete said training. The proposed requirement to have competency-based training initially and annually provided by DBHDS is not attainable. The department does not have the bandwidth to sustain such training and only provides a certain amount of training; has limited trainers (one currently); and does not allow for the appropriate number of staff to be trained at hire and annually thereafter.

3. 12VAC35-115-175 F Investigations

            Each private provider organization is required to have designated staff complete OHR approved investigation training. As such, the Director or designee has the ability and knowledge to conduct all investigations and determine findings related to those investigations. These findings are then reported into the CHRIS system within the allotted 10-day timeframe at which point OHR reviews and has the ability to determine appropriate next steps, based on each individual case. Citations are then issued related to the review of OHR. Private providers are required to create and implement their own internal policies and procedures regarding investigations as set forth in DBHDS OHR regulation. These internal policies and procedures are reviewed and approved by DBHDS thus there is no additional necessity for the Director or designee to maintain any additional file. The request to have Directors or designees maintain an additional file would not be in alignment with the Governor’s request to reduce regulatory burden by 25%, but would rather increase this burden.

4. 12VAC35-115-146. Authorized Representative

            The proposed changes in this section imply that an organization should exhaust all aspects of an individual’s family tree prior to looking at a next friend as an option for an authorized representative appointment. As such, the Director or designee would be required to track all such inquires into the individuals family tree which is often not provided or available. In such circumstances where a next friend appointment is necessary, that process would be significantly slowed by the proposed requirement seeking LHRC approval.

1. 12VAC35-115-90 Access to and amendment of service records

            While we agree the release of medical or mental health information to an individual should be done so limiting the risk of harm, we as a private provider organization are not able to enforce this upon any licensed medical professional or licensed mental health professional. The provisions for such release of documents are managed by and regulated via HIPAA. HIPAA is federal law and a federal standard therefore OHR would not be able to enforce such requirements on medical or mental health professionals either.

2. 12VAC35-115-260 Provider and department responsibilities

            Private providers are required to provide competency-based training initially and annually thereafter in several areas, but specifically for the purpose of this comment, abuse and neglect investigations are covered in the annual human rights training. Per the regulation staff are required to achieve a score of 80% or higher as evidenced by testing and certification in order to successfully complete said training. The proposed requirement to have competency-based training initially and annually provided by DBHDS is not attainable. The department does not have the bandwidth to sustain such training and only provides a certain amount of training; has limited trainers (one currently); and does not allow for the appropriate number of staff to be trained at hire and annually thereafter.

3. 12VAC35-115-175 F Investigations

            Each private provider organization is required to have designated staff complete OHR approved investigation training. As such, the Director or designee has the ability and knowledge to conduct all investigations and determine findings related to those investigations. These findings are then reported into the CHRIS system within the allotted 10-day timeframe at which point OHR reviews and has the ability to determine appropriate next steps, based on each individual case. Citations are then issued related to the review of OHR. Private providers are required to create and implement their own internal policies and procedures regarding investigations as set forth in DBHDS OHR regulation. These internal policies and procedures are reviewed and approved by DBHDS thus there is no additional necessity for the Director or designee to maintain any additional file. The request to have Directors or designees maintain an additional file would not be in alignment with the Governor’s request to reduce regulatory burden by 25%, but would rather increase this burden.

4. 12VAC35-115-146. Authorized Representative

            The proposed changes in this section imply that an organization should exhaust all aspects of an individual’s family tree prior to looking at a next friend as an option for an authorized representative appointment. As such, the Director or designee would be required to track all such inquires into the individuals family tree which is often not provided or available. In such circumstances where a next friend appointment is necessary, that process would be significantly slowed by the proposed requirement seeking LHRC approval.

1. 12VAC35-115-90 Access to and amendment of service records

            While we agree the release of medical or mental health information to an individual should be done so limiting the risk of harm, we as a private provider organization are not able to enforce this upon any licensed medical professional or licensed mental health professional. The provisions for such release of documents are managed by and regulated via HIPAA. HIPAA is federal law and a federal standard therefore OHR would not be able to enforce such requirements on medical or mental health professionals either.

2. 12VAC35-115-260 Provider and department responsibilities

            Private providers are required to provide competency-based training initially and annually thereafter in several areas, but specifically for the purpose of this comment, abuse and neglect investigations are covered in the annual human rights training. Per the regulation staff are required to achieve a score of 80% or higher as evidenced by testing and certification in order to successfully complete said training. The proposed requirement to have competency-based training initially and annually provided by DBHDS is not attainable. The department does not have the bandwidth to sustain such training and only provides a certain amount of training; has limited trainers (one currently); and does not allow for the appropriate number of staff to be trained at hire and annually thereafter.

3. 12VAC35-115-175 F Investigations

            Each private provider organization is required to have designated staff complete OHR approved investigation training. As such, the Director or designee has the ability and knowledge to conduct all investigations and determine findings related to those investigations. These findings are then reported into the CHRIS system within the allotted 10-day timeframe at which point OHR reviews and has the ability to determine appropriate next steps, based on each individual case. Citations are then issued related to the review of OHR. Private providers are required to create and implement their own internal policies and procedures regarding investigations as set forth in DBHDS OHR regulation. These internal policies and procedures are reviewed and approved by DBHDS thus there is no additional necessity for the Director or designee to maintain any additional file. The request to have Directors or designees maintain an additional file would not be in alignment with the Governor’s request to reduce regulatory burden by 25%, but would rather increase this burden.

4. 12VAC35-115-146. Authorized Representative

            The proposed changes in this section imply that an organization should exhaust all aspects of an individual’s family tree prior to looking at a next friend as an option for an authorized representative appointment. As such, the Director or designee would be required to track all such inquires into the individuals family tree which is often not provided or available. In such circumstances where a next friend appointment is necessary, that process would be significantly slowed by the proposed requirement seeking LHRC approval.

1. 12VAC35-115-90 Access to and amendment of service records

            While we agree the release of medical or mental health information to an individual should be done so limiting the risk of harm, we as a private provider organization are not able to enforce this upon any licensed medical professional or licensed mental health professional. The provisions for such release of documents are managed by and regulated via HIPAA. HIPAA is federal law and a federal standard therefore OHR would not be able to enforce such requirements on medical or mental health professionals either.

2. 12VAC35-115-260 Provider and department responsibilities

            Private providers are required to provide competency-based training initially and annually thereafter in several areas, but specifically for the purpose of this comment, abuse and neglect investigations are covered in the annual human rights training. Per the regulation staff are required to achieve a score of 80% or higher as evidenced by testing and certification in order to successfully complete said training. The proposed requirement to have competency-based training initially and annually provided by DBHDS is not attainable. The department does not have the bandwidth to sustain such training and only provides a certain amount of training; has limited trainers (one currently); and does not allow for the appropriate number of staff to be trained at hire and annually thereafter.

3. 12VAC35-115-175 F Investigations

            Each private provider organization is required to have designated staff complete OHR approved investigation training. As such, the Director or designee has the ability and knowledge to conduct all investigations and determine findings related to those investigations. These findings are then reported into the CHRIS system within the allotted 10-day timeframe at which point OHR reviews and has the ability to determine appropriate next steps, based on each individual case. Citations are then issued related to the review of OHR. Private providers are required to create and implement their own internal policies and procedures regarding investigations as set forth in DBHDS OHR regulation. These internal policies and procedures are reviewed and approved by DBHDS thus there is no additional necessity for the Director or designee to maintain any additional file. The request to have Directors or designees maintain an additional file would not be in alignment with the Governor’s request to reduce regulatory burden by 25%, but would rather increase this burden.

4. 12VAC35-115-146. Authorized Representative

            The proposed changes in this section imply that an organization should exhaust all aspects of an individual’s family tree prior to looking at a next friend as an option for an authorized representative appointment. As such, the Director or designee would be required to track all such inquires into the individuals family tree which is often not provided or available. In such circumstances where a next friend appointment is necessary, that process would be significantly slowed by the proposed requirement seeking LHRC a

1. 12VAC35-115-90 Access to and amendment of service records

            While we agree the release of medical or mental health information to an individual should be done so limiting the risk of harm, we as a private provider organization are not able to enforce this upon any licensed medical professional or licensed mental health professional. The provisions for such release of documents are managed by and regulated via HIPAA. HIPAA is federal law and a federal standard therefore OHR would not be able to enforce such requirements on medical or mental health professionals either.

2. 12VAC35-115-260 Provider and department responsibilities

            Private providers are required to provide competency-based training initially and annually thereafter in several areas, but specifically for the purpose of this comment, abuse and neglect investigations are covered in the annual human rights training. Per the regulation staff are required to achieve a score of 80% or higher as evidenced by testing and certification in order to successfully complete said training. The proposed requirement to have competency-based training initially and annually provided by DBHDS is not attainable. The department does not have the bandwidth to sustain such training and only provides a certain amount of training; has limited trainers (one currently); and does not allow for the appropriate number of staff to be trained at hire and annually thereafter.

3. 12VAC35-115-175 F Investigations

            Each private provider organization is required to have designated staff complete OHR approved investigation training. As such, the Director or designee has the ability and knowledge to conduct all investigations and determine findings related to those investigations. These findings are then reported into the CHRIS system within the allotted 10-day timeframe at which point OHR reviews and has the ability to determine appropriate next steps, based on each individual case. Citations are then issued related to the review of OHR. Private providers are required to create and implement their own internal policies and procedures regarding investigations as set forth in DBHDS OHR regulation. These internal policies and procedures are reviewed and approved by DBHDS thus there is no additional necessity for the Director or designee to maintain any additional file. The request to have Directors or designees maintain an additional file would not be in alignment with the Governor’s request to reduce regulatory burden by 25%, but would rather increase this burden.

4. 12VAC35-115-146. Authorized Representative

            The proposed changes in this section imply that an organization should exhaust all aspects of an individual’s family tree prior to looking at a next friend as an option for an authorized representative appointment. As such, the Director or designee would be required to track all such inquires into the individuals family tree which is often not provided or available. In such circumstances where a next friend appointment is necessary, that process would be significantly slowed by the proposed requirement seeking LHRC approval.

1.  Human rights complaint process & provider requirements for reporting
1. 12VAC35-115-175 E. 5. The program director shall ensure that the investigation begins as soon as possible but within 24 hours.
2. 12VAC35-115-230 A.2. 2. The director of a service licensed or funded by the department shall report complaints that do not involve abuse, neglect, or exploitation via the department's web-based reporting application by the end of the next business day after receipt of the complaint in accordance with 12VAC35-115-175.

It is recommended that the timeframes for beginning to investigate (as soon as possible but within 24 hours) and reporting of a complaint (by the end of the next business day) be extended to provide programs the opportunity to remain within the regulation even if/when staff may be out of the office or have other emergent/high priority needs. It is recommended that these regulations should allow for 72 hours/three business days.

2. Access to and amendment of services records
1. 12VAC35-115-90 C. 2. b. (1) (1) If the individual requests a review of denial of access, the provider shall designate a physician, or clinical psychologist, licensed clinical social worker, or licensed professional counselor who was not directly involved in the denial to review the decision to deny access. The physician, or clinical psychologist, licensed clinical social worker, or licensed professional counselor shall determine within a reasonable period of time, not to exceed 10 calendar days, whether or not to deny the access requested in accordance with the standard in subdivision 2 a of this subsection. The provider shall promptly provide notify the individual notice of the physician's, or psychologist's, licensed clinical social worker’s, or counselor’s determination and provide or deny access in accordance with that determination.

The addition of "not to exceed 10 calendar days" is more stringent than what HIPPA requires. The HIPPA regulation is as follows, §164.524 (4)(d)(4) Review of denial requested. If the individual has requested a review of a denial under paragraph (a)(4) of this section, the covered entity must designate a licensed health care professional, who was not directly involved in the denial to review the decision to deny access. The covered entity must promptly refer a request for review to such designated reviewing official. The designated reviewing official must determine, within a reasonable period of time, whether or not to deny the access requested based on the standards in paragraph (a)(3) of this section. The covered entity must promptly provide written notice to the individual of the determination of the designated reviewing official and take other action as required by this section to carry out the designated reviewing official's determination

It is recommended that the timeframe in the regulation align with HIPPA, which indicates "reasonable period of time" and that the verbiage of "not to exceed 10 calendar days" be removed.

This comment relates to licensed professionals completing capacity evaluations: 12VAC35-115-145 B.

The change in the regulation to have physicians or clinical psychologists complete the capacity evaluation for the purpose of giving consent or authorization is unrealistic and detrimental to CSBs and many private providers. Most of these organizations do not have attending physicians or clinical psychologists on staff to complete these evaluations. This change would prohibit capacity evaluations from being completed and would result in clients not being able to obtain authorized representatives to assist with consent and authorizations. Currently, the regulation states that licensed staff (LPCs and LCSWs) are able to complete these evaluations. Many organizations use licensed staff to complete the capacity evaluation with the ultimate goal of obtaining an authorized representative, an important advocate for the client. This current regulation should remain with no changes, allowing this process to continue for the benefit of the clients.

Our comment related to licensed professionals doing capacity evaluations: 12VAC35-115-145 B

By utilizing Section 54.1-2983.2 this uses medical language that is less applicable to CSBs and private providers.  Is the attending physician the same as capacity reviewer or is it an either/or situation as in D below it?  Recommend clarifying and allowing that licensed professionals can be the capacity reviewer as this will impact a CSB or private provider’s ability to designate authorized representatives.  Most providers don’t have an attending physician.  These regs seem to imply that this process starts with a physician rather than other providers within an organization.

I strongly echo the sentiment that a licensed professional should be able to review capacity, or at the very least, that NPs should be included along with psychiatrists and psychologists.  Many facilities, including NVMHI, rely on Nurse Practitioners to assess and treat patients.  Removal of their ability to assess capacity will be to the detriment of patient care by delaying capacity evaluations, and subsequently, delaying treatment.  Our NPs have done an excellent job for many years, and have demonstrated the knowledge, skills, and judgment to appropriately assess capacity.  If not all NPs, an NP who has obtained their PMHNP (Psychiatric Mental Health Nurse Practitioner) certification should certainly be permitted to independently assess capacity for psychiatric patients.

This comment relates to licensed professionals completing capacity evaluations: 12VAC35-115-145 B.

The change in the regulation to have physicians or clinical psychologists complete the capacity evaluation for the purpose of giving consent or authorization is unrealistic and detrimental to CSBs and many private providers. Most of these organizations do not have attending physicians or clinical psychologists on staff to complete these evaluations. This change would prohibit capacity evaluations from being completed and would result in clients not being able to obtain authorized representatives to assist with consent and authorizations. Currently, the regulation states that licensed staff (LPCs and LCSWs) are able to complete these evaluations. Many organizations use licensed staff to complete the capacity evaluation with the ultimate goal of obtaining an authorized representative, an important advocate for the client. This current regulation should remain with no changes, allowing this process to continue for the benefit of the clients.

115-50.D.5, 115-230.B.3
While the intent of these provisions is to remind providers of their mandated reporter responsibilities, there is a lack of clarity regarding expectations. This is particularly evident given the differing thresholds for classifying events as potential abuse, neglect, or exploitation across the Office of Human Rights (OHR), Adult Protective Services (APS), and Child Protective Services (CPS). OHR classifies a broader range of incidents as potential maltreatment requiring investigation than APS and CPS.

If the intent is to require providers to contact APS or CPS whenever an allegation is made under these Human Rights regulations, it may result in an excessive number of unnecessary reports to social services. However, if the expectation is that providers should only report founded allegations to social services, this would cause compliance issues with mandated reporter requirements by delaying reporting until after an internal investigation. To enhance clarity and streamline the process, OHR should collaborate with APS and CPS to better align notification expectations and thresholds for determining potential abuse, neglect, or exploitation.

115-90
Thank you for using this opportunity to better align access to records with similar regulatory frameworks.

115-145
The proposed changes increase the complexity of an already challenging requirement and reduce clarity. The specification in 145.B that an “attending physician” must both conduct a capacity evaluation (i, ii, iii) and obtain written certification from a capacity reviewer (iv) is confusing and suggests the following implications:

1. A new requirement for two separate evaluations to determine incapacity, which is an increased burden not present in the current regulations.

2. An assumption that a provider has an attending physician on staff or that an individual’s primary care physician (PCP) (if a physician and not a physician extender) will conduct the evaluation and provide certification. However, B.2 states that the evaluator cannot be currently involved in the individual's treatment, making it unclear who is permitted to perform this function.

3. Many DBHDS-licensed providers do not have a physician on staff, and requiring access to both an attending physician and a capacity reviewer places an unrealistic burden on providers.

Further concerns include:

• B.2 conflicts with APS expectations since APS prefers capacity evaluations to be conducted by professionals already familiar with the individual.

• The regulation does not clarify who is responsible for paying for capacity evaluations when the provider does not have an in-house evaluator, and health insurance may not cover such assessments.

• H. outlines necessary elements of capacity evaluations, but providers typically have no control over how external evaluators structure their reports. Creating provider-specific forms does not streamline the process, as evaluators are not required to use them and may charge additional fees for administrative requests.

• The restriction on Co-Authorized Representatives (Co-ARs) provides a mechanism for resolving conflicts but fails to acknowledge situations where both parents of an adult service recipient previously had equal decision-making authority.

115-175

• C.8 and E.6.d: While the formal investigation timeline is unchanged, the requirement to provide the final decision and action plan in writing within ten business days shortens the time available for the investigation itself. Post-investigation activities, including distribution of outcome information, require additional time.

• F.3: While resolving complaints quickly is ideal, requiring investigations for all complaints—regardless of whether they rise to the level of abuse, neglect, or exploitation—creates unnecessary delays and administrative burdens.

115-260

• A.7: This additional requirement lacks clarity and does not appear to simplify or streamline compliance requirements.

• A.9: The proposed requirement does not simplify or streamline processes but rather increases the burden on both providers and DBHDS. Since DBHDS’ training is the only accepted option, it is the Department’s responsibility to ensure it meets competency-based standards. OHR’s training may need to be offered more than four times per year to meet demand. Expecting providers to develop their own training is impractical, as many only have one or two trained investigators, who would also be responsible for creating competency-based training. A more effective approach could be integrating competency evaluation into OHR’s Look-Behind process, with technical assistance or remedial training provided as needed. Request: A more robust training program for investigators from DBHDS.

• A.12: Specify that this notification should be completed by updating contact information in the current web-based application (CHRIS or CONNECT) and ensure that these systems support this function.

• B.1: Requiring all staff members to read this entire chapter is an unrealistic administrative burden. The regulations include complex details, such as variance and appeals processes, that are not relevant to most staff members. The existing requirement for competency-based training is more effective. Instead, DBHDS should consider developing a standardized training module for general staff to ensure consistent and accessible training across all levels of a provider’s organization.

Summary of Key Recommendations:

1. Clarify mandated reporting expectations and align OHR, APS, and CPS thresholds to avoid unnecessary reports or delayed reporting.

2. Simplify and clarify 115-145 to ensure realistic implementation, considering that many providers do not have physicians on staff.

3. Adjust the investigation timeline in 115-175 to allow sufficient time for thorough investigations before requiring written reports.

4. Enhance DBHDS training availability for investigators rather than requiring providers to develop their own competency-based training.

5. Revise the 115-260.B.1 requirement to focus on competency-based training rather than requiring all staff to read the full regulations.

Thank you for the opportunity to provide feedback on these important regulatory changes. We appreciate the effort to improve the clarity and effectiveness of these regulations and look forward to further collaboration to ensure practical implementation.

Profoundly, our organization lacks the Psychologists to perform Competency evaluations.

Thank you for the opportunity to comment on the proposed changes to regulations related to the Department of Behavioral Health and Developmental Services’ Office of Human Rights, as outlined in Chapter 115 – Regulations to Assure the Rights of Individuals Receiving Services from Providers Licensed, Funded, or Operated by the Department of Behavioral Health and Developmental Services.

As a clinician working in a behavioral health program, I have concerns regarding the proposed change in 12VAC35-115-150 and 12VAC35-115-175, which would allow individuals to file complaints up to one year after being discharged from services. While I recognize the intent behind extending the timeframe for complaints, this provision could present challenges, such as difficulties in gathering accurate information or evidence after a significant period and potential delays in resolving concerns.

Additionally, the increased risk of prolonged complaint windows could lead to higher legal and liability insurance costs for providers, potentially impacting the availability of services. Many behavioral health programs are already experiencing difficulty maintaining affordable liability coverage, as insurers are limiting policies for behavioral health services due to increased risks.

To support both individuals receiving services and the sustainability of behavioral health programs, I respectfully recommend shortening the timeframe for filing complaints to one month after discharge. This would promote timely investigations, maintain the integrity of the complaint process, and ensure fair and efficient resolution for all parties involved.

Thank you for the opportunity to comment on the draft revision to Chapter 115.  The below is respectfully submitted for your consideration. 

Page 9 - 12VAC35-115-50 Dignity, Section D Provider Duties, item 2.

Reference - Providers shall develop, carry out, and regularly monitor policies and procedures that assure the protection of each individual's rights and promote diversity, equity, and inclusivity in the provision of services.

Comment -The addition of the phrase “diversity, equity, and inclusivity in the provision of services” is only used once in the draft Human Rights regulations. By not providing regulatory reference or definitions, the amendment does not give additional rights or protections to the individual.  It infers additional expectations for the provider but fails to specify any standards.  Without clear definition and standards, the expectation of the amendment remains open to interpretation. This type of generality can result in administrative and programmatic inefficiencies and misinterpretation by the individual receiving services.  Recently this phrase has become politized and can no longer be labeled as noncontroversial.    

Request - It is requested that the addition be removed.

Page 46 12VAC35-115-260 Provider and department responsibilities – Section B.

Item 9. Require competency-based training of employees responsible for conducting investigations of complaints of alleged violations of this chapter upon designation, and at least annually thereafter, and maintain documentation of such training in each employee's personnel file;

Comment – Requiring designated staff that have a history of competently conducting investigations and that routinely do so, to repeat the training each year, is not efficient.

Request – Consider only requiring annual training for those who did not conduct an investigation in the previous calendar year, or as required by CAP.  

Thank you for the opportunity to comment on the proposed changes to regulations related to the Department of Behavioral Health and Developmental Services’ Office of Human Rights, as outlined in Chapter 115 – Regulations to Assure the Rights of Individuals Receiving Services from Providers Licensed, Funded, or Operated by the Department of Behavioral Health and Developmental Services.

As a clinician working in a behavioral health program, I have concerns regarding the proposed change in 12VAC35-115-150 and 12VAC35-115-175, which would allow individuals to file complaints up to one year after being discharged from services. While I recognize the intent behind extending the timeframe for complaints, this provision could present challenges, such as difficulties in gathering accurate information or evidence after a significant period and potential delays in resolving concerns.

Additionally, the increased risk of prolonged complaint windows could lead to higher legal and liability insurance costs for providers, potentially impacting the availability of services. Many behavioral health programs are already experiencing difficulty maintaining affordable liability coverage, as insurers are limiting policies for behavioral health services due to increased risks.

To support both individuals receiving services and the sustainability of behavioral health programs, I respectfully recommend shortening the timeframe for filing complaints to one month after discharge. This would promote timely investigations, maintain the integrity of the complaint process, and ensure fair and efficient resolution for all parties involved.

As a clinician working in a behavioral health program, I have concerns regarding the proposed change in 12VAC35-115-150 and 12VAC35-115-175, which would allow individuals to file complaints up to one year after being discharged from services. While I recognize the intent behind extending the timeframe for complaints, this provision could present challenges, such as difficulties in gathering accurate information or evidence after a significant period and potential delays in resolving concerns.

Additionally, the increased risk of prolonged complaint windows could lead to higher legal and liability insurance costs for providers, potentially impacting the availability of services. Many behavioral health programs are already experiencing difficulty maintaining affordable liability coverage, as insurers are limiting policies for behavioral health services due to increased risks.

To support both individuals receiving services and the sustainability of behavioral health programs, I respectfully recommend shortening the timeframe for filing complaints to one month after discharge. This would promote timely investigations, maintain the integrity of the complaint process, and ensure fair and efficient resolution for all parties involved.

As a clinician working in a behavioral health program, I have concerns regarding the proposed change in 12VAC35-115-150 and 12VAC35-115-175, which would allow individuals to file complaints up to one year after being discharged from services. While I recognize the intent behind extending the timeframe for complaints, this provision could present challenges, such as difficulties in gathering accurate information or evidence after a significant period and potential delays in resolving concerns.

Additionally, the increased risk of prolonged complaint windows could lead to higher legal and liability insurance costs for providers, potentially impacting the availability of services. Many behavioral health programs are already experiencing difficulty maintaining affordable liability coverage, as insurers are limiting policies for behavioral health services due to increased risks.

To support both individuals receiving services and the sustainability of behavioral health programs, I respectfully recommend shortening the timeframe for filing complaints to one month after discharge. This would promote timely investigations, maintain the integrity of the complaint process, and ensure fair and efficient resolution for all parties involved.

Pg. 45, 12VAC35-115-260.  B.1 Providers shall require their employees to "read" and become familiar with the human rights regulations.  The overarching provider entity provides orientation, annual training, testing, and points of contact for those who are steeped in the human rights regs for staff questions and concerns; however, it is a significant task for every employee to read all of the human rights regulations, including sections on administrative operations that have nothing to do with direct care staff duties.  Reverting back to requiring that employees "become familiar" with human rights regulations has resulted in a very low rate of founded human rights allegations currently, per the CHRIS data system. 

Pg 26, 12VAC35-115-145. B and B.1 Licensed professionals have successfully assessed and determined capacity to provide informed consent.  Has there been a surge of false assessments?  Limiting the types of professionals who can do capacity evaluations for BH and DD providers of any size agency will create a significant barrier to a person served having a supportive or authorized decision maker, which may delay service provision, coordination of resources and supports to meet social drivers of health, needed placements, perhaps even care coordination.  This barrier for community-based care will be similar to the barrier to discharge from state hospitals in trying to secure guardians for persons who require a guardianship.  This will create backlogs and a bottleneck, replacing the direct services a physician or psychologist can provide with schedules of capacity evaluations that have been provided successfully by LCSWs and LPC for years.  This doesn't appear to streamline operations or make anyone safer. 

Dear Commissioner Smith and State Board of Behavioral Health and Developmental Services Members:

On behalf of the Treatment and Recovery Allies (“TARA”) which is an advocacy group representing Virginia small and independent operators within the substance abuse treatment and recovery industry,  we thank you for the opportunity to comment on the Department of Behavioral Health and Developmental Services’ Office of Human Rights’ announced intent to adopt regulations related to Chapter 115 – Regulations to Assure the Rights of Individuals Receiving Services from Providers Licensed, Funded, or Operated by the Department of Behavioral Health and Developmental Services.

Members of the Treatment and Recovery Allies are committed to providing quality recovery support services to Virginians recovering from substance abuse disorders. As such, our members participate in state and national trade groups and have worked to develop best management practices and implement a hierarchy of controls to protect our clients.

I.           Summation of Treatment and Recovery Allies’ (TARA’s) Comments

Virginia businesses need certainty and consistency in any regulatory program. This ensures that the regulated community understands the requirements of the program, and that all parties can work together to satisfy the regulatory requirements. Below is a summary of the comments related to these recommended changes in regulatory requirements.

1. The Board Should Not Adopt a One-Year period for Complaints to be Filed. (12VAC35-115-150 and 12VAC35-115-175)

TARA’s highest concern is the recommendation in 12VAC35-115-150 and 12VAC35-115-175 which permits individuals to file complaints against providers up to one year after the alleged incident or when they have been discharged from services. TARA asserts that adopting this language would be overly burdensome and costly for small providers to implement. While we understand the intention behind offering extended time for complaints, we believe that this provision could create unintended consequences, such as the potential for delays in resolving issues and the difficulty of gathering accurate information or evidence after such a long period.

Currently, private providers face expense legal costs which can range from $10,000 to $50,000 per incident depending on the severity of the complaint. Exposing small providers to a year of possible filings will not only increase their legal costs but will jeopardize their ability to procure affordable liability insurance. In fact, independent operators are already experiencing an increased risk of being dropped by their insurance provider as more insurance companies are not covering liability policies for behavioral health services.

Given these concerns, Treatment and Recovery Allies (TARA), would recommend shortening the time frame for filing complaints to one month after departure from services. This would ensure timely investigations; help maintain the integrity of the complaint process and better protect the interests of all stakeholders involved.

Below are additional comments and recommendations TARA believes would ensure continued safety for clients as well as providing small providers with a reasonable framework of regulations to compile with.

2. Investigation timeline shortened too much. (12VAC35-115-175)

TARA encourages the Board to reconsider the proposed change to reduce the timeframe for an A/N/E investigation from 20 days to 10 days found in E.6. of 12VAC35-115-175.  Ten days is a very short time period to complete a thorough investigation and determine corrective actions. We are already required to put precautionary measures in place to protect the individual upon receipt of the allegation, so shortening the timeframe for the full investigation does not add any protective benefit to the individual, nor does it reduce the regulatory burden on providers. If anything, this increases the burden by hastening an already quick timeline. Also, it diminishes the spirit of the investigation process, which can often involve many staff interviews, documentation reviews, and meetings with program and department leadership to determine an action plan that will prevent recurrence. The purpose of an investigation should not just be a simple yes/no on whether it's founded or not but also provide quality improvement. We request the Board keeps the current 20-day timeframe.

Also in Section F.3, while resolving complaints quickly is ideal, requiring investigations for all complaints—regardless of whether they rise to the level of abuse, neglect, or exploitation—creates unnecessary delays and administrative burdens.

3. Deadline to begin investigation and report complaints is too short.

(12VAC35-115-175 and 12VAC35-115-230)

TARA recommends extending the timeframes for beginning to investigate a compliant (as soon as possible but within 24 hours) and the reporting of a complaint (by the end of the next business day) be extended to provide programs the opportunity to remain compliant. It’s very possible that complaints could be filed when staff may be out of the office or must address other higher and immediate priority needs. TARA recommends these regulations should be extended to 72 hours/three business days.

4. Maintain HIPPA standards related to access of service records.

(12VAC35-115-90)

While we agree that the release of medical or mental health information to an individual should be done, as a private provider we are not able to enforce this upon any licensed medical professional or licensed mental health professional. The provisions for such release of documents are managed by and regulated by HIPAA. HIPAA is federal law and a federal standard therefore OHR would not be able to enforce such requirements on medical or mental health professionals either. TARA recommends removing this requirement.

5. Increased training requirements facilitated by the DBHDS are not sustainable. (12VAC35-115-260)

Currently, private providers are required to provide competency-based training initially and annually thereafter in several areas. However, for the purpose of this comment, abuse and neglect investigations are covered in the annual human rights training. Per the regulation staff are required to achieve a score of 80% or higher as evidenced by testing and certification in order to successfully complete said training. The proposed requirement to have competency-based training initially and annually provided by DBHDS is not attainable. The department does not have the bandwidth to sustain such training and only provides a certain amount of training; has limited trainers (one currently); and does not allow for the appropriate number of staff to be trained at hire and annually thereafter.

6. Maintaining additional files by providers is unnecessary. (12VAC35-115-175)

Each private provider organization is required to have designated staff complete OHR approved investigation training. As such, the Director or designee has the ability and knowledge to conduct all investigations and determine findings related to those investigations. These findings are then reported into the CHRIS system within the allotted 10-day timeframe at which point OHR reviews and is able to determine appropriate next steps based on each individual case. Citations are then issued related to the review of OHR. Private providers are required to create and implement their own internal policies and procedures regarding investigations as set forth in DBHDS OHR regulation. These internal policies and procedures are reviewed and approved by DBHDS thus there is no additional necessity for the Director or designee to maintain any additional file. The request to have Directors or designees maintain an additional file is not aligned with the Governor’s request to reduce regulatory burden by 25% but would rather increase this burden. TARA requests this requirement be eliminated. 

7. Tracking down all possible family members is not viable. (12VAC35-115-146)

The proposed changes in this section imply that an organization should exhaust all aspects of an individual’s familial relations prior to looking at a next friend as an option for an authorized representative appointment. This will create an onerous requirement on providers since this information is often not provided or available. It will also negatively impact clients who are likely to have complicated relationships with family members as well as significantly delay the process in determining a next friend appointment. Finally, this is likely to conflict with one’s power of attorney designations and raise HIPPA issues if providers are calling family members informing them of a relative’s situation and inadvertently releasing protected information under HIPPA.   

8. To streamline mandated reporter responsibilities, OHR should consult with APS and CPS. (12VAC35-115-50 and 12VAC35-115-230)

While the intent of these provisions is to remind providers of their mandated reporter responsibilities, there is a lack of clarity regarding expectations. This is particularly evident given the differing thresholds for classifying events as potential abuse, neglect, or exploitation across the Office of Human Rights (OHR), Adult Protective Services (APS), and Child Protective Services (CPS). OHR classifies a broader range of incidents as potential maltreatment requiring investigation than APS and CPS.

If the intent is to require providers to contact APS or CPS whenever an allegation is made under these Human Rights regulations, it may result in an excessive number of unnecessary reports to social services. However, if the expectation is that providers should only report founded allegations to social services, this would cause compliance issues with mandated reporter requirements by delaying reporting until after an internal investigation. To enhance clarity and streamline the process, OHR should collaborate with APS and CPS to better align notification expectations and thresholds for determining potential abuse, neglect, or exploitation.

9. Additional written communication lacks clarity and does not simplify regulatory burden. (12VAC35-115-260)

In Section A.7, which would require providers to provide written communication about any actions taken by the provider outside of the complaint resolution process to correct or remediate a violation of this chapter that directly involved the individual would not simplify or streamline the process. In fact, this is typically included in the Complaint Action Plan (CPA).

10. A more reasonable requirement for staff members is best. (12VAC35-115-260)

In Section B.1. requiring all staff members to read this entire chapter is an unrealistic administrative burden. The regulations include complex details, such as variance and appeals processes, that are not relevant to most staff members. The existing requirement for competency-based training is more effective. Instead, DBHDS should consider developing a standardized training module for general staff to ensure consistent and accessible training across all levels of a provider’s organization.

II.          Conclusion

We appreciate the opportunity to provide comments on the Office of Human Rights’ recommended changes to Chapter 115 - Regulations to Assure the Rights of Individuals Receiving Services from Providers Licensed, Funded, or Operated by the Department of Behavioral Health and Developmental Services. As you deliberate on the comments submitted by the private provider community, we respectfully request you give strong consideration to our comments and specifically to TARA’s recommendation that the Board reject the recommendation of a one-year period for complaints to be filed after services and adopt a one-month period instead. 

Sincerely,

Nicole Riley, Representative

Treatment and Recovery Allies (TARA)

Richmond, VA