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Regulations to Assure the Rights of Individuals Receiving Services from Providers Licensed, Funded, or Operated by the Department of Behavioral Health and Developmental Services [12 VAC 35 ‑ 115]
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1/25/21  2:51 pm
Commenter: Fairfax-Falls Church CSB

Regulations to Assure the Rights of Individuals Receiving Services from Providers Licensed, Funded,
 

Reg Part

Regulation

Feedback Comments

I. General Provisions

12VAC35-115-30. Definitions- Abuse #1

Rules around psychotherapy, is in conflict with those regulations regarding reporting of  Allegations of Sexual Assaults involving minors. This is consistent with the Human Rights of Minors within the Commonwealth of Virginia. 

12VAC35-115-30. Definitions

 

"Consent" means the voluntary agreement of an individual or that individual's authorized representative to specific services. Consent shall be given freely and without undue inducement; any element of force, fraud, deceit, or duress; or any form of constraint or coercion. Consent may be expressed through any means appropriate for the individual, including verbally, through physical gestures or behaviors, in Braille or American Sign Language, in writing, or through other methods.

Adults receiving services may withdraw consent to treatment at any time, and that includes their right to leave a treatment facility, and it should not always result in a "Missing Person" as well as a "Neglect Allegation" against staff per the  VA 115- regulations. These should be  looked at case by case basis- situational  and a determination will be made as  it causes a regulatory burden.

"Peer-on-peer aggression" means a physical act, verbal threat, or demeaning expression by an individual against or to another individual that causes physical or emotional harm to that individual. Examples include hitting, kicking, scratching, and other threatening behavior. Such instances may constitute potential neglect.

Can DBHDS define what "demeaning expression" entails. This is subjective statement &  should be defined objectively. 

OHR defines peer on peer aggression as an automatic allegation of neglect against staff which causes a regulatory burden, and by this definition is contradictory.

Part II Assurance of Rights

12VAC35-115-40. Assurance of rights.
C. Every individual has a right to seek resolution of his complaint and make a human rights complaint. Any individual or anyone acting on his behalf who thinks that a provider has violated any of his rights under these regulations may make a complaint and get help in making the complaint in accordance with Part V (
12VAC35-115-150 et seq.) of this chapter.

It would be beneficial if additional guidance can be provided in reference to how many repeated complaints a person/ individual can file on the same topic/subject, again this can result in a regulatory burden.

Part III

Explanation of Individual Rights and Provider Duties

12VAC35-115-50. Dignity.
C.5- Have paper, pencil and stamps provided free of charge for at least one letter every day upon request. However, if an individual

has funds to buy paper, pencils, and stamps to send a letter every day, the provider does not have to pay for them.

Language should reflect current times; people should have the right to accessible communication methods that is consistent and align with therapeutic practices.

12VAC35-115-70. Participation in decision making and consent.

1c. The individual's services record shall include the signature or other indication of the individual's or his authorized representative's consent.

Language should reflect proper (general) gender role identity

12VAC35-115-80. Confidentiality

8. C- c. proceedings: If the individual or someone acting for him introduces any aspect of his mental condition or services as an issue before a court, administrative agency, or medical malpractice review panel, the provider may disclose any information relevant to that issue. The provider may also disclose any records if they are properly subpoenaed, if a court orders them to be produced, or if involuntary admission or certification for admission is being proposed.

Language of gender identity should reflect current applicable language. (throughout the regulation)

12VAC35-115-100. Restrictions on freedoms of everyday life.

1. Enjoy all the freedoms of everyday life that are consistent with his need for services, his protection, and the protection of others, and that do not interfere with his services or the services of others. These freedoms include:

Individuals have freedom of choice to leave treatment facilities, as they have the freedom to move in and out of treatment settings. There are situations where clients will leave against medical advice without notifying their provider. This contradicts when clients are "missing" it may result in "Allegation of Neglect" against staff. These cases should be reviewed on a case-by-case basis- Situational based as it creates a regulatory burden for the provider.

 

Part V

Complaint Resolution, Hearing, and Appeal Procedures

12VAC35-115-175. Human rights complaint process.

A. Each individual has a right to:

1. Make a complaint that the provider has violated any of the rights assured under this chapter;

Additional guidance is requested regarding the number of times an individual can file the same complaint for the same topic/subject

Part VII

Reporting Requirements

12VAC35-115-230. Provider requirements for reporting.

A-3. -The investigating authority shall provide a written report of the results of the investigation of abuse or neglect to the director

and human rights advocate via the department's web-based reporting application within 10 working days from the date the

investigation began unless an extension has been granted (see 12VAC35-115-175).  

Dependent on the complexity of the Case of Allegation of Potential Abuse, Neglect of Exploitation, 10 working days is not sufficient to conclude the investigation.  In certain situations,/cases-for example, sexual allegations, the complexity of  these cases may require specialized training to conduct these types of  investigations, in addition, there are external entities investigating, and providers  are not able to investigate until they are given permission by these entities to initiate these investigations. In other jurisdictions, providers do not engage in "investigating" Sexual Allegation cases.

 

 

 

 

CommentID: 91402