We support this opportunity to improve clarity within the DBHDS Human Rights regulations and to decrease administrative burden, while maintaining the core function of supporting and protecting the rights of individuals. Alignment with other regulations and requirements to the greatest extent possible can facilitate this; areas to consider include Medicaid (particularly Home and Community Based Services requirements), HIPAA, 42 CFR - Part 2, Adult Protective Services and Child Protective Services expectations, and standards regarding the investigation of medication errors, as well as the Health Care Decisions Act. Greater alignment would support consistent interpretation, reduce duplicative or conflicting processes, and allow providers and oversight bodies to focus more effectively on meaningful rights protection.

Analysis of citations issued to providers for human rights matters other than those due to founded complaints and allegations may provide an opportunity for revisions to help address the root causes of these citations. When regulations are unclear, there is greater opportunity for misinterpretation and inconsistency.

Authorized Representative regulations are difficult to operationalize. Often, providers do not have employees qualified to perform these evaluations, have limited ability to help individuals obtain these evaluations from outside professionals, and may experience the requirement to obtain capacity evaluations as an unfunded mandate. Providers have no authority to direct an outside party on how to document capacity evaluations. Providers should be expected to share results of capacity evaluations they conducted if proper authorizations are in place. Directing providers to ask a court to appoint a guardian or to ask a court to authorize treatment does not consider the affiliated costs and does not provide an interim solution when another substitute is not available.

Restrictions, behavioral supports, and restraints are another area where providers need clearer thresholds, timelines, and decision-making pathways. Providers can be placed between the obligation to follow medical orders and requirements to present information to an LHRC for approval, creating risk of service disruption or delayed implementation of clinically indicated supports. Timelines, LHRC volunteer availability, independent review committee members availability, and the understandable desire of individuals and their families for people to avoid service interruptions make it difficult for providers to know how to proceed. Neither providers nor LHRC members have authority to override a medical order and failure to implement a medical order may create health, safety, or maltreatment concerns. Requirements may be difficult for individuals and families to understand. In addition, while misuse of restrictions/restraints has been real, neither providers nor LHRC members have the authority to override a medical order.

The current restriction process might benefit from a tiered framework that distinguishes between low-risk, non-invasive safety supports and high-impact rights restrictions. Requiring LHRC review for straightforward, clinically justified measures may create unnecessary delays and reduce focus on more significant rights concerns. Establishing clear thresholds for LHRC involvement could improve both efficiency and protection of individual rights.

We encourage the Department to use this regulatory review to clarify expectations, reduce inconsistent interpretation, and provide practical pathways for providers to protect individual rights while also meeting clinical, safety, and service-continuity obligations. Clearer language, realistic timelines, and alignment with related state and federal requirements would benefit individuals receiving services, families, providers, and oversight bodies.

We encourage DBHDS to continue prioritizing regulatory clarity, practical implementation, consistency with related state and federal requirements, and administrative efficiency, while maintaining strong protections for the legal and human rights of individuals receiving services.

 Clear, operationally feasible regulations that are consistently interpreted across providers, advocates, licensing staff, and Human Rights oversight bodies will strengthen compliance and protect individual rights throughout Virginia's behavioral health system.

 Alignment with Related State and Federal Requirements: Because Human Rights regulations intersect with many other regulatory and statutory requirements, we encourage DBHDS to maximize alignment wherever possible. Areas for consideration include Medicaid requirements, particularly the Home and Community-Based Services Settings Rule; HIPAA; 42 CFR Part 2; the Health Care Decisions Act; Adult Protective Services; Child Protective Services; professional licensing requirements; and medication safety standards.

Greater alignment across these frameworks would reduce conflicting interpretations, minimize duplicative processes, improve consistency in licensing and oversight, and enable providers, Human Rights Advocates, LHRCs, and the Office of Human Rights to focus more effectively on protecting individual rights.

Regulatory Clarity and Consistency: We support the Department's goal of reducing regulatory ambiguity. Reviewing trends in Human Rights citations unrelated to substantiated abuse, neglect, exploitation, or substantiated rights complaints may help identify provisions that are frequently misunderstood or inconsistently interpreted.

Clarifying these requirements would promote more consistent statewide implementation and allow regulatory oversight to focus on issues that pose the greatest risk to individuals receiving services.

Authorized Representatives: The Authorized Representative provisions remain among the most operationally challenging aspects of the current regulations.

While aligning with the Health Care Decisions Act is appropriate, providers often lack access to qualified evaluators, have limited ability to help individuals obtain independent capacity evaluations, and have no authority to direct how outside professionals document those evaluations. Similarly, providers cannot compel courts to appoint guardians or authorize treatment, nor can they control the timing or outcome of those proceedings.

These requirements may function as an unfunded mandate, placing responsibility on providers for activities beyond their legal authority. We encourage DBHDS to clearly distinguish provider responsibilities from those of licensed evaluators, substitute decision-makers, and the courts, while recognizing the practical limitations providers face in implementing these requirements.

Restrictions, Behavioral Supports, and Medical Orders: The regulations governing restrictions, behavioral supports, and restraints would benefit from clearer thresholds, timelines, and decision-making pathways.

Providers may find themselves balancing physician orders, protections for individual rights, licensing requirements, and LHRC review processes. Neither providers nor LHRCs have authority to override a valid medical order; however, delaying implementation pending committee review may create health and safety concerns, disrupt services, or increase the risk of regulatory noncompliance.

We encourage DBHDS to establish clearer distinctions between medically necessary interventions and discretionary restrictions on rights, and to consider a tiered review process that reserves full LHRC review for higher-risk or more restrictive interventions. This approach would maintain strong protections for individuals while improving efficiency and reducing unnecessary delays.

Reporting Timeframes: As part of the Department's effort to streamline administrative processes and improve regulatory consistency, we encourage DBHDS to review reporting requirements that are measured in calendar days, and that routinely fall on weekends, state holidays, or other periods when Department staff are unavailable to receive or act on submitted reports.

Providers often devote significant staff resources to meeting reporting deadlines in the evenings, weekends, and holidays, even though reports submitted during these periods are not reviewed until maybe the next business day. This creates an unnecessary administrative burden and does not improve individual safety, regulatory oversight, or the Department's ability to respond.

We recommend measuring reporting timeframes in business days rather than calendar days, or automatically extending deadlines to the next business day when they fall outside normal Commonwealth business operations. This approach would be consistent with the Department's stated goals of simplifying administrative processes, reducing unnecessary burden, and improving regulatory clarity without diminishing protections for individuals receiving services.

Balancing Rights Protection and Access to Care: Protecting individual rights also includes ensuring timely access to medically necessary treatment and avoiding unnecessary disruptions to services.

Providers, advocates, LHRC members, clinicians, and families share the common goal of protecting the rights, dignity, and safety of individuals receiving services. Regulations that set clear expectations, realistic timelines, and practical implementation pathways are more likely to achieve those objectives than those that create uncertainty or delay clinically appropriate care.

Thank-you for the opportunity to provide public comments. Henrico Area Mental Health & Developmental Services forwarded comments directly to susan.puglisi@dbhds.virginia.gov on 6.30.26.

Both sections state telling or talking to the individual which could endanger the staff person.  Recommend using “inform or notify” which allows for communication in writing, if that is the safest option for staff.  Overall recommendation to swap tell or talk to notify or inform throughout all these regulations.

With the addition in the January 2025 draft regs of “an attorney-in-fact, health care agent, or legal guardian” to a section that previously only applied to authorized reps, it reads that we need #1-4 which don’t apply to anything except authorized rep.  Suggestion to separate out that there needs to be documentation of the “attorney-in-fact, health care agent, or legal guardian” from the remainder that applies to AR.

Authorized Representatives:  The AR provisions remain among the most operationally challenging aspects of the current regulations. Providers often lack access to qualified evaluators, have limited ability to help individuals obtain independent capacity evaluations, and have no authority to direct how outside professionals document those evaluations. Similarly, providers cannot compel courts to appoint guardians or authorize treatment, nor can they control the timing or outcome of those proceedings. We encourage DBHDS to allow licensed clinicians (LPCs & LCSWs) to complete capacity evaluations. This would be the most beneficial for the clients, otherwise, Authorized Representatives probably won't be assigned.

Reporting Timeframes: As part of DBHDS's effort to streamline administrative processes and improve regulatory consistency, we encourage DBHDS to review reporting requirements that are measured in calendar days, and that routinely fall on weekends, state holidays, or other periods when Department staff are unavailable to receive or act on submitted reports. Providers often devote significant staff resources to meeting reporting deadlines in the evenings, weekends, and holidays, even though reports submitted during these periods are not reviewed until the next business day. This creates an unnecessary administrative burden and does not improve individual safety, regulatory oversight, or the Department's ability to respond. We recommend measuring reporting timeframes in business days rather than calendar days or automatically extending deadlines to the next business day when they fall outside of normal State business operations. This approach would be consistent with DBHDS's goal of simplifying administrative processes, reducing unnecessary burdens, and improving regulatory clarity without diminishing protections for individuals receiving services.