4 Petitions for Rulemaking

PETITIONS FOR RULEMAKING

Vol. 27 Iss. 8 - December 20, 2010

TITLE 12. HEALTH

STATE BOARD OF BEHAVIORAL HEALTH AND DEVELOPMENTAL SERVICES

Agency Decision

Title of Regulation: 12VAC35-115. Rules and Regulations to Assure the Rights of Individuals Receiving Services from Providers of Mental Health, Mental Retardation and Substance Abuse Services.

Statutory Authority: § 37.2-400 of the Code of Virginia.

Name of Petitioner: Steven Shoon.

Nature of Petitioner's Request: Establish a new regulation requiring state-operated and publicly funded facilities to physically post Freedom of Information Act (FOIA) information.

Agency Decision: Take no action.

Statement of Reason for Decision: The request exceeds the scope of 12VAC35-115.

Agency Contact: Linda B. Grasewicz, Regulatory Coordinator, Department of Behavioral Health and Developmental Services, 1220 Bank Street, Richmond, VA 23218-1797, telephone [phone], or email [e-mail].

VA.R. Doc. No. R11-08; Filed December 6, 2010, 8:59 a.m.

Agency Decision

Title of Regulation: 12VAC35-115. Rules and Regulations to Assure the Rights of Individuals Receiving Services from Providers of Mental Health, Mental Retardation and Substance Abuse Services.

Statutory Authority: § 37.2-400 of the Code of Virginia.

Name of Petitioner: Steven Shoon.

Nature of Petitioner's Request: Establish a new regulation requiring all state mental health facilities, excluding mental health facilities publicly funded or licensed, to establish a facility directory and to require the commissioner (or the department's Central Office) to establish and maintain a master patient directory for all eight state mental health facilities.

Agency Decision: Take no action.

Statement of Reason for Decision: The request does not address the protections of individual human rights and therefore is outside of the scope of the Human Right regulations.

Agency Contact: Linda B. Grasewicz, Regulatory Coordinator, Department of Behavioral Health and Developmental Services, 1220 Bank Street, Richmond, VA 23218-1797, telephone [phone], or email [e-mail].

VA.R. Doc. No. R11-09; Filed December 6. 2010, 9:01 a.m.

Agency Decision

Title of Regulation: 12VAC35-115. Rules and Regulations to Assure the Rights of Individuals Receiving Services from Providers of Mental Health, Mental Retardation and Substance Abuse Services.

Statutory Authority: § 37.2-400 of the Code of Virginia.

Name of Petitioner: Steven Shoon.

Nature of Petitioner's Request: Amend 12VAC35-115-30 to add a definition of "acute treatment."

Agency Decision: Take no action.

Statement of Reason for Decision: The petitioner incorrectly states that 12VAC35-115-110 uses the term, "acute treatment." The term is not used in the regulations, so there is no need to have the definition.

Agency Contact: Linda B. Grasewicz, Regulatory Coordinator, Department of Behavioral Health and Developmental Services, 1220 Bank Street, Richmond, VA 23218-1797, telephone [phone], or email [e-mail].

VA.R. Doc. No. R11-06; Filed December 3, 2010, 4:52 p.m.

Agency Decision

Title of Regulation: 12VAC35-115. Rules and Regulations to Assure the Rights of Individuals Receiving Services from Providers of Mental Health, Mental Retardation and Substance Abuse Services.

Statutory Authority: § 37.2-400 of the Code of Virginia.

Name of Petitioner: Steven Shoon.

Nature of Petitioner's Request: Amend 12VAC35-115-40 to require the display of information on how to contact people the provider identifies as accountable for individuals resolving complaints or exercising FOIA rights for all providers operated or publicly funded by or through the department.

Agency Decision: Take no action.

Statement of Reason for Decision: The Human Rights regulations and the Virginia Freedom of Information Act (FOIA) are two distinctive regulatory processes. The Human Rights regulations are intended to assure consumer protections of legal, civil, and human rights related to the receipt of behavioral health and developmental services. FOIA is intended to ensure citizen access to government records in custody of public officials and meetings of "public bodies." The request exceeds the scope of 12VAC35-115.

Agency Contact: Linda B. Grasewicz, Regulatory Coordinator, Department of Behavioral Health and Developmental Services, 1220 Bank Street, Richmond, VA 23218-1797, telephone [phone], or email [e-mail].

VA.R. Doc. No. R11-10; Filed December 3, 2010, 4:54 p.m.

Agency Decision

Title of Regulation: 12VAC35-115. Rules and Regulations to Assure the Rights of Individuals Receiving Services from Providers of Mental Health, Mental Retardation and Substance Abuse Services.

Statutory Authority: § 37.2-400 of the Code of Virginia.

Name of Petitioner: Steven Shoon.

Nature of Petitioner's Request: Amend 12VAC35-115-40 B 1 to require all providers to list the people identified for helping individuals resolve complaints and help with other rights.

Agency Decision: Take no action.

Statement of Reason for Decision: The Human Rights regulations already require the posting of information as to how individuals can contact a human rights advocate. Additionally, the regulations also require that individuals be provided with the name and contact information of a human rights advocate and a description of the role of the advocate.

Agency Contact: Linda B. Grasewicz, Regulatory Coordinator, Department of Behavioral Health and Developmental Services, 1220 Bank Street, Richmond, VA 23218-1797, telephone [phone], or email [e-mail].

VA.R. Doc. No. R11-05; Filed December 6, 2010, 8:53 a.m.

Agency Decision

Title of Regulation: 12VAC35-115. Rules and Regulations to Assure the Rights of Individuals Receiving Services from Providers of Mental Health, Mental Retardation and Substance Abuse Services.

Statutory Authority: § 37.2-400 of the Code of Virginia.

Name of Petitioner: Steven Shoon.

Nature of Petitioner's Request: Amend 12VAC35-115-90 to include the statement that "clinical findings required to be stated for denial or limitation of access to service records shall not be construed as the reason required to be documented or explained under 12VAC35-115-100."

Agency Decision: Take no action.

Statement of Reason for Decision: This appears to be a practice issue. The stipulations of 12VAC35-115-90 are based on the requirements of the federal Health Insurance Portability and Accountability Act (HIPAA), while the provisions of 12VAC35-115-100 relate to everyday freedoms and have nothing to do with accessing an individual's service record.

Agency Contact: Linda B. Grasewicz, Regulatory Coordinator, Department of Behavioral Health and Developmental Services, 1220 Bank Street, Richmond, VA 23218-1797, telephone [phone], or email [e-mail].

VA.R. Doc. No. R11-03; Filed December 6, 2010, 8:57 a.m.

Agency Decision

Title of Regulation: 12VAC35-115. Rules and Regulations to Assure the Rights of Individuals Receiving Services from Providers of Mental Health, Mental Retardation and Substance Abuse Services.

Statutory Authority: § 37.2-400 of the Code of Virginia.

Name of Petitioner: Steven Shoon.

Nature of Petitioner's Request: Amend 12VAC35-115-100 A 1 d to add the Internet to the list of resources that an individual has the right to see, hear, or receive and add an additional requirement for the provider to document the criteria for removal of restrictions.

Agency Decision: Take no action.

Statement of Reason for Decision: Adding the Internet to the list of resources would require every private and public provider to offer Internet access to individuals receiving services, which may not even be possible. Adding the Internet to the list would result in significant additional costs for both public and private providers.

Agency Contact: Linda B. Grasewicz, Regulatory Coordinator, Department of Behavioral Health and Developmental Services, 1220 Bank Street, Richmond, VA 23218-1797, telephone [phone], or email [e-mail].

VA.R. Doc. No. R11-04; Filed December 3, 2010, 3:54 p.m.

Agency Decision

Title of Regulation: 12VAC35-115. Rules and Regulations to Assure the Rights of Individuals Receiving Services from Providers of Mental Health, Mental Retardation and Substance Abuse Services.

Statutory Authority: § 37.2-400 of the Code of Virginia.

Name of Petitioner: Steven Shoon.

Nature of Petitioner's Request: Amend 12VAC35-115-150 to better reflect the requirements of and to reference the specific section of § 2.2-3700 et seq. of the Code of Virginia (Virginia Freedom of Information Act) related to closed meeting attendance policies.

Agency Decision: Take no action.

Statement of Reason for Decision: The board feels that 12VAC35-115-15 accurately reflects and references the Virginia Freedom of Information Act.

Agency Contact: Linda B. Grasewicz, Regulatory Coordinator, Department of Behavioral Health and Developmental Services, 1220 Bank Street, Richmond, VA 23218-1797, telephone [phone], or email [e-mail].

VA.R. Doc. No. R11-07; Filed December 3, 2010, 3:56 p.m.

Agency Decision

Title of Regulation: 12VAC35-115. Rules and Regulations to Assure the Rights of Individuals Receiving Services from Providers of Mental Health, Mental Retardation and Substance Abuse Services.

Statutory Authority: § 37.2-400 of the Code of Virginia.

Name of Petitioner: Steven Shoon.

Nature of Petitioner's Request: Amend 12VAC35-115-160 to allow the human rights advocate to remove the facility director from reviewing or appointing a designee to review a complaint when the human rights advocate makes a finding that the facility director is not willing and able to render an impartial review of the complaint.

Agency Decision: Take no action.

Statement of Reason for Decision: 12VAC35-115-170 has replaced 12VAC35-115-160. Complaints should be dealt with at the lowest level possible and should first be directed to the person who caused the problem and has the power to fix it. This is the director. If not satisfied, the complainant can then take the concern to the independent Local Human Rights Committee for a hearing.

Agency Contact: Linda B. Grasewicz, Regulatory Coordinator, Department of Behavioral Health and Developmental Services, 1220 Bank Street, Richmond, VA 23218-1797, telephone [phone], or email [e-mail].

VA.R. Doc. No. R11-12; Filed December 3, 2010, 4:27 p.m.

Agency Decision

Title of Regulation: 12VAC35-115. Rules and Regulations to Assure the Rights of Individuals Receiving Services from Providers of Mental Health, Mental Retardation and Substance Abuse Services.

Statutory Authority: § 37.2-400 of the Code of Virginia.

Name of Petitioner: Steven Shoon.

Nature of Petitioner's Request: Amend 12VAC35-115-180 to establish the findings of an abuse allegation as a basis for a Local Human Rights Committee (LHRC) fact-finding hearing.

Agency Decision: Take no action.

Statement of Reason for Decision: The proposed change would diminish an individual's right to choose whether an allegation of abuse should come before the LHRC for a fact finding hearing. Presently this is a personal decision; the proposed change would make an LHRC fact-finding hearing mandatory.

Agency Contact: Linda B. Grasewicz, Regulatory Coordinator, Department of Behavioral Health and Developmental Services, 1220 Bank Street, Richmond, VA 23218-1797, telephone [phone], or email [e-mail].

VA.R. Doc. No. R11-13; Filed December 3, 2010, 4:30 p.m.

Agency Decision

Title of Regulation: 12VAC35-115. Rules and Regulations to Assure the Rights of Individuals Receiving Services from Providers of Mental Health, Mental Retardation and Substance Abuse Services.

Statutory Authority: § 37.2-400 of the Code of Virginia.

Name of Petitioner: Steven Shoon.

Nature of Petitioner's Request: Amend 12VAC35-115-230 A to include the Virginia Office for Protection and Advocacy as a required agency to whom providers must report abuse, neglect, and exploitation allegations.

Agency Decision: Take no action.

Statement of Reason for Decision: This request exceeds the scope of the Human Rights regulations and would require a change in the Code of Virginia to implement.

Agency Contact: Linda B. Grasewicz, Regulatory Coordinator, Department of Behavioral Health and Developmental Services, 1220 Bank Street, Richmond, VA 23218-1797, telephone [phone], or email [e-mail].

VA.R. Doc. No. R11-14; Filed December 3, 2010, 4:35 p.m.

Agency Decision

Title of Regulation: 12VAC35-115. Rules and Regulations to Assure the Rights of Individuals Receiving Services from Providers of Mental Health, Mental Retardation and Substance Abuse Services.

Statutory Authority: § 37.2-400 of the Code of Virginia.

Name of Petitioner: Steven Shoon.

Nature of Petitioner's Request: Amend 12VAC35-115-250 to remove the State Human Rights Director (SHRD) and all human rights advocates from under the authority of the Commissioner.

Agency Decision: Take no action.

Statement of Reason for Decision: The State Human Rights Director and human rights advocates are part of the Department of Behavioral Health and Developmental Services (DBHDS) regulatory process to assure protection of the rights of individuals receiving services. As department employees, these positions are under the authority of the DBHDS Commissioner. Making the requested change would require a change in the Code of Virginia.

Agency Contact: Linda B. Grasewicz, Regulatory Coordinator, Department of Behavioral Health and Developmental Services, 1220 Bank Street, Richmond, VA 23218-1797, telephone [phone], or email [e-mail].

VA.R. Doc. No. R11-11; Filed December 7, 2010, 9:19 a.m.

Initial Agency Notice

Title of Regulation: 12VAC35-115. Rules and Regulations to Assure the Rights of Individuals Receiving Services from Providers of Mental Health, Mental Retardation and Substance Abuse Services.

Statutory Authority: § 37.2-400 of the Code of Virginia.

Name of Petitioner: Steven Shoon.

Nature of Petitioner's Request: Amend 12VAC35-115-30 definitions of "restriction" and "seclusion" to define a distinction between one another.

Agency's Plan for Disposition of Request: The board will consider the petition and any comments received at its regularly scheduled meeting on April 28, 2011.

Public Comment Deadline: January 10, 2011.

Agency Contact: Linda B. Grasewicz, Regulatory Coordinator, Department of Behavioral Health and Developmental Services, 1220 Bank Street, Richmond, VA 23218-1797, telephone [phone], or email [e-mail].

VA.R. Doc. No. R11-20; Filed December 6, 2010, 12:09 p.m.

Initial Agency Notice

Title of Regulation: None specified.

Statutory Authority: N/A.

Name of Petitioner: Steven Shoon.

Nature of Petitioner's Request: Promulgate new regulations requiring the Commissioner to request the FOI Advisory Council assistance in developing a guidance document for bridging the applicable meeting requirements under §§ 2.2-3702, 2.2-3704.1, 2.2-3707, 2.2-3707.1, 2.2-3708, 2.2-3708.1, 2.2-3710, 2.2-3711, 2.2-3712, 2.2-4007, 2.2-4031, and 2.2-3704 of the Code of Virginia and to define the term "roll call" as used under § 2.2-3710 of the Code of Virginia.

Agency's Plan for Disposition of Request: The board will consider the petition and any comments received at its regularly scheduled meeting on April 28, 2011.

Public Comment Deadline: January 10, 2011.

Agency Contact: Linda B. Grasewicz, Regulatory Coordinator, Department of Behavioral Health and Developmental Services, 1220 Bank Street, Richmond, VA 23218-1797, telephone [phone], or email [e-mail].

VA.R. Doc. No. R11-21; Filed December 6, 2010, 11:17 a.m.

Initial Agency Notice

Title of Regulation: None specified.

Statutory Authority: N/A.

Name of Petitioner: Steven Shoon.

Nature of Petitioner's Request: Establish new regulations requiring a FOI Advisory Council study on what groupings within Department of Behavioral Health and Developmental Services constitute public bodies; and what convenings do and do not constitute a meeting under § 2.2-3701 of the Code of Virginia.

Agency's Plan for Disposition of Request: The board will consider the petition and any comments received at its regularly scheduled meeting on April 28, 2011.

Public Comment Deadline: January 10, 2011.

Agency Contact: Linda B. Grasewicz, Regulatory Coordinator, Department of Behavioral Health and Developmental Services, 1220 Bank Street, Richmond, VA 23218-1797, telephone [phone], or email [e-mail].

VA.R. Doc. No. R11-22; Filed December 6, 2010, 11:45 a.m.

Initial Agency Notice

Title of Regulation: None specified.

Statutory Authority: N/A.

Name of Petitioner: Steven Shoon.

Nature of Petitioner's Request: Establish new regulations that mandate mental health consumers receiving inpatient hospitalization, outpatient treatment, or both; and have access to meetings of the State Board; State Human Rights Committee (SHRC); and all Local Human Rights Committees (LHRCs) via electronic video/tele-conference pursuant to § 2.2-3708 and § 2.2-3708.1 of the Code of Virginia.

Agency's Plan for Disposition of Request: The board will consider the petition and any comments received at its regularly scheduled meeting on April 28, 2011.

Public Comment Deadline: January 10, 2011.

Agency Contact: Linda B. Grasewicz, Regulatory Coordinator, Department of Behavioral Health and Developmental Services, 1220 Bank Street, Richmond, VA 23218-1797, telephone [phone], or email [e-mail].

VA.R. Doc. No. R11-23; Filed December 6, 2010, 12:05 p.m.