Currently, under the DBHDS purview, only a psychologist may write a restrictive behavior plan. Other professionals should be allowed to approve restrictive medical devices with the individual's/guardian's permission. However, the OHR considers many things to be restrictive, which are safety precautions that many of us use in everyday life. Medical devices need to be fast-tracked through OHR or have an exclusion. A few examples, a 5-piece safety harness for an individual with low muscle tone, may need a more secure safety harness (seat belt) when in a wheelchair or vehicle. The use of a location device (Project Lifesaver, Angel Sense, Apple Watch) to help locate a missing person. A person with limited communication skills or high anxiety who looks aggressive may be trying to seek help from a stranger who does not understand the person's limitations. Bed rails are used as a gentle reminder to ask for help when getting out of bed. It took me over a year to get approved for an individual to be able to wear his soft helmet. This person knew when a seizure was about to happen and was able to doff and don his helmet without assistance. We had to get letters from the individual, with a diagnosis of cerebral palsy, his PCP, neurologist, and a psychologist who would see him for this purpose only. In the meantime, the individual sustained multiple head injuries due to not being allowed to wear his helmet before or during the seizure. The provider was held responsible for an infringement of human rights if the individual put on their helmet. 

In Virginia well over half of the jurisdictions have policies requiring people who are in law enforcements custody at an emergency department under an Emergency Custody Order (ECO) or a Temporary Detention Order (TDO) MUST be handcuffed to a bed. Most of the law enforcement agencies in my area require one point of restraint some require two points of restraint. The hospital I work at prefers two points of restraint in their policy. ECO's last up to eight hours. If the person under an ECO receives a TDO they are still in custody until they are able to transport them to a mental health facility. TDO's are 72 hours for adults and 96 hours for adolescents and are active until a commitment hearing is conducted. Commitment hearings are not conducted on weekends or holidays.

The restraints are mandatory regardless of the disposition of the person in custody. Because of a shortage of open beds in mental health facilities or if the person has other conditions that make them a difficult placement at private facilities people are often handcuffed to beds for days at a time. 

Populations that are most at risk of having to wait for days to be placed are adolescents, geriatric, and people with additional medical needs. People who are non verbal and have autism almost always serve their entire TDO handcuffed to a bed.

At one time the deputies and law enforcement officers I work with used to have a degree of discretion as far as the need for restraints. They no longer do. At mental health facilities restraints can only be used when an individual is in immediate danger of hurting themselves or others and the restraints must come off when that danger has passed.  This is not true in emergency departments across the state.

Comments on Restraint and Seclusion

Redefine “restraints for protective purposes”  in both 12VAC35-105 and 12VAC35-115 to include “ . . . using a mechanical device typically ordered or recommended by the treating professional to prevent or minimize the possibility of injury to compensate for a physical or cognitive deficit when the individual does not have the option to remove the device.  The device may limit an individual’s movement and prevent possible harm or it may create a passive barrier, such as a helmet, to protect the individual from injury.  As failure to insure proper use of such devices may increase to potential for injury or harm, the provider should take appropriate steps to ensure consistent and proper use as ordered or recommended.

As a restraint for protective purposes is described in the individual’s treatment plan, is not deemed “unnecessary” and falls more generally into the category of “necessary” protection from injury or harm, instances of their use (some of which are by intention hours long, eg a helmet that is worn during waking hours, or bedrails which are in place during the night) should not be included in the reporting required in 12VAC35-115-110 or 12VAC35-115-230 C.3.

Definition of “seclusion” in both 12VAC35-150 and 12VAC35-115 should be amended to include “the involuntary placement of an individual in an area secured by a door that is locked or held shut by a staff person , by physically blocking the door, or by any other physical means so the individual cannot leave the area a room meeting the specifications outlined in 12VAC35-105-1950 and only as permitted in 12VAC35-115-110 C. 3.

Vocal Virginia is the Commonwealth’s only state-wide mental health advocacy and education nonprofit that is completely staffed and governed by individuals with lived experience of mental health challenges. Vocal Virginia offers this perspective with a deep commitment to improving the quality and safety of care for all individuals experiencing mental health challenges. Seclusion and restraint are interventions that can have long-lasting emotional and psychological effects. While often intended to maintain safety, these practices may unintentionally cause harm, particularly for individuals with histories of trauma.

Many people receiving care report that seclusion and restraint can feel frightening, disempowering, and isolating—at times compounding the distress that led them to seek help. These practices can erode trust between individuals receiving support and providers and may hinder recovery rather than support it.

There are proven, person-centered approaches that reduce or eliminate the need for these interventions. Trauma-informed care, de-escalation techniques, peer support, and individualized crisis planning have all shown positive outcomes in fostering safety without coercion. Implementing these approaches can create more healing environments where individuals feel respected, heard, and supported.

Vocal Virginia believes that everyone deserves to receive care that promotes dignity, empowerment, and recovery. Reducing and ultimately eliminating seclusion and restraint aligns with these values and reflects a broader commitment to equity and compassion in behavioral health care.

Thank you for considering this perspective as part of the ongoing efforts to enhance the safety and effectiveness of mental health services.

As an organization that promotes and protects the human rights of people with developmental disabilities and actively supports their full inclusion and participation in the community throughout their lifetimes, The Arc of Virginia strongly believes that all people have the right to be treated with dignity, respect, and freedom from harm. Seclusion and restraint—whether physical, mechanical, or chemical—are traumatic practices that should only be used as a last resort, if at all, and never as a means of discipline, convenience, or control. Our philosophy is rooted in the understanding that positive, person-centered supports, trauma-informed care, and meaningful relationships are the foundation of safe and inclusive environments. The regulations must clearly reflect this commitment by setting strong safeguards, limiting the use of restrictive practices, and promoting alternatives that uphold each person’s autonomy and humanity. The Arc of Virginia appreciates the opportunity to provide input on changes to the Department of Behavioral Health and Developmental Disabilities’ restraint and seclusion regulations.

Our recommendations are: 

• Recommend prohibiting the use of mechanical or pharmacological restraints in all community settings. 

• 12VAC35-115-110(C)(B) - Add language to ensure proper use of mechanical supports, preventing providers from using voluntary supports as tools for restraint and seclusion.

• We agree with 12VAC35-115-110(C)(4), but are concerned that it may be difficult to identify when restraint, seclusion, or time out is being used as punishment or matter of convenience. We recommend that a third individual review the documentation detailed in 12VAC35-115-110(C)(13)(c) to confirm the necessity of the actions taken.

• 12VAC35-115-110(C)(14) - the Department clarify that limitations for restraint and seclusion are the maximum limitations, and people should not be left in restraints or seclusion for four, two, or one hour simply because they can.

  • Add language that clarifies when another occurrence of restraint or seclusion can happen again to avoid multiple or back-to-back occurrences.

  • Add language to define when it is absolutely necessary to a person’s health and safety that restraint or seclusion continue beyond the limitations and what actions a provider must take to get an extension approved.

• Providers should be responsible for notifying the restrained or secluded person’s guardian, if such person has one, whenever restraint or seclusion is used.

We agree with the recommendations made by Jennifer Fidura to:

• Redefine “restraints for protective purposes”  in both 12VAC35-105 and 12VAC35-115 to include “ . . . using a mechanical device typically ordered or recommended by the treating professional to prevent or minimize the possibility of injury when the individual does not have the option to remove the device.  The device may limit an individual’s movement and prevent possible harm or it may create a passive barrier, such as a helmet, to protect the individual from injury.  As failure to ensure proper use of such devices may increase the potential for injury or harm, the provider should take appropriate steps to ensure consistent and proper use as ordered or recommended

Again, The Arc of Virginia appreciates the opportunity to provide input and will gladly answer any questions at lgerken@thearcofva.org.