6VAC35-41 Regulation Governing Juvenile Group Homes and Halfway Houses

REGULATIONS

Vol. 26 Iss. 11 - February 01, 2010

TITLE 6. CRIMINAL JUSTICE AND CORRECTIONS

STATE BOARD OF JUVENILE JUSTICE

Chapter 41

Proposed Regulation

Title of Regulation: 6VAC35-41. Regulation Governing Juvenile Group Homes and Halfway Houses (adding 6VAC35-41-10 through 6VAC35-41-1330).

Statutory Authority: §§ 16.1-309.9, 66-10, and 66-24 of the Code of Virginia.

Public Hearing Information:

April 6, 2010 - 7 p.m. - General Assembly Building, 9th and Broad Streets, Richmond, VA

April 7, 2010 - 10 a.m. - Department of Juvenile Justice, 700 Centre, 700 East Franklin Street, 2nd Floor Conference Room, Richmond, VA

Public Comment Deadline: April 7, 2010.

Agency Contact: Janet P. Van Cuyk, Regulatory Coordinator, Department of Juvenile Justice, 700 Centre, 700 East Franklin Street, 4th Floor, Richmond, VA 23219, telephone [phone], FAX (804) 371-0773, or email [e-mail].

Basis: Section 16.1-309.9 of the Code of Virginia requires the board to develop, promulgate, and approve standards for the operation and evaluation of facilities authorized by the Virginia Juvenile Community Crime Control Act (Article 12.1 (§ 16.1-309.2 et seq.) of Chapter 11 of Title 16.1 of the Code of Virginia) which includes group homes that receive funding through this Act.

Section 66-24 of the Code of Virginia establishes the board as the licensing agency for group homes or residential facilities providing care of juveniles in direct state care and requires the board to promulgate regulations for licensure or certification of these facilities. This section also requires that the regulations include (i) specifications for the structure and accommodations of such facilities according to the needs of the juveniles to be placed in the home or facility; (ii) rules concerning allowable activities, local government and group home or residential care facility imposed curfews, and study, recreational, and bedtime hours; and (iii) a requirement that each home or facility have a community liaison responsible for facilitating cooperative relationships with the neighbors, the school system, local law enforcement, local government officials, and the community at large.

Additionally, the board is entrusted with general authority under § 66-10 of the Code of Virginia to promulgate such regulations as may be necessary to carry out the provisions of the laws of the Commonwealth administered by the director or the department.

Purpose: The board regulates three distinct types of facilities: (i) juvenile correctional centers; (ii) juvenile secure detention centers; and (iii) group homes and halfway houses. At present, these facilities are governed by two separate regulations: (a) the Standards for Juvenile Residential Facilities (6VAC35-140) and (b) the Standards for the Interim Regulation of Children's Residential Facilities (6VAC35-51).

The department has had several iterations of regulations governing the residential facilities regulated by the board. Earlier, the department had five separate regulations governing secure detention homes, postdispositional confinement in secure detention, predispositional and postdispositional group homes, and juvenile correctional centers. These regulations applied to the facilities in conjunction with the Standards for the Interdepartmental Regulation of Children's Residential Facilities (CORE regulation) that went into effect in 1981.

The board's Standards for Juvenile Residential Facilities (6VAC35-140) was most recently reviewed and revised in May 2005 and consists of the board's regulations for all facilities it regulates. This regulation establishes the minimum standards for residential facilities in the Commonwealth's juvenile justice system and covers program operations, health care, personnel, facility safety, and physical environment. It contains additional provisions for secure custody facilities, boot camps, work camps, juvenile industries, and independent living programs.

The Standards for the Interim Regulation of Children's Residential Facilities (6VAC35-51) is a reenactment of the CORE regulation in its entirety. This regulation was adopted by the board in September 2008 to comply with Chapter 873 of the 2008 Acts of the General Assembly, which mandated the repeal of the CORE regulation and action to be taken by the affected boards by October 31, 2009. This regulation has more expansive provisions than 6VAC35-140 and also contains minimum requirements for the different facilities regulated by the board.

Throughout the years, problems have been identified in implementing the requirements contained in these two separate regulations given the distinct nature of the three types of facilities. Accordingly, the board has approved consolidating current regulatory requirements for residential programs and dividing them into separate regulations governing (i) juvenile correctional centers; (ii) detention centers; and (iii) group homes and halfway houses. This revamping of the regulatory scheme was done in conjunction with a comprehensive review of the current provisions. This review was done with the goals of enhancing the clarity of the regulatory requirements and achieving improvements that will be reasonable and prudent, and will not impose an unnecessary burden on regulants or the public.

Having clear and concise regulations is essential to protecting the health, safety, and welfare of residents in group homes and halfway houses as well as citizens in the community. With clear expectations for the administrators managing these facilities, the facilities will be able to be operate more smoothly, which will become extremely important in this current climate of limited financial resources and will continue to allow for supporting the needs of the residents, thus supporting the overall rehabilitation and community safety goals of the department.

Substance: The primary intent of this regulatory overhaul is to reduce confusion in applying the regulatory requirements in each type of facility regulated by the board (juvenile correctional centers, secure detention centers, and group homes and halfway houses). Each provision was reviewed as to whether it was (i) appropriate for the type of facility; (ii) clear in its intent and effect; and (iii) necessary for the proper management of the facility. Amendments were made to accommodate the specific needs of group homes and halfway houses and to enhance program and service requirements to best provide for the residents.

The following changes were made to the proposed regulation:

1. Contains only those provisions relating to group homes' and halfway houses' operation and management.

2. Removes any responsibilities of the department, regulatory authority, or the board currently included in the regulations (i.e., issuance of license or certificate and sanctions).

3. Reorganizes the order of the regulatory provisions and groups the provisions with similar provisions. The proposed regulation has sections for: (i) general provisions; (ii) administration and personnel; (iii) physical environment; (iv) safety and security; (v) residents’ rights; (vi) program operation; (vii) work programs; (viii) health care services; and (ix) behavior management. Facility specific parts are included as needed (i.e., wilderness and independent living programs).

4. The following changes are proposed to the General Provisions:

a. Deletes many definitions (such as the definition of "day" and "therapy"); changes definitions to correspond with those used in other regulations; and, where appropriate, incorporates definitions into the substantive provisions of the regulation. Adds definitions for "direct care staff," "direct supervision," "regulatory authority," and "written."

b. Cross-references the board's Certification Regulation (6VAC35-20) for consistency in application of variances.

c. Allows serious incident and child protective service reports to be noted in the resident's case record and documented elsewhere. Mirrors recent changes adopted by the Department of Social Services in its residential regulation.

5. The following changes are proposed in Administration and Personnel:

a. Amends the provisions relating to community relationships. Each draft adopts different provisions specific to the type of setting and locations.

b. Amends the background checks sections to conform with the board variance issued November 2008.

c. Reworks the entire training sections. Separates out (i) orientation, (ii) required initial training, and (iii) retraining. Some different requirements are in each of the facilities.

d. Adds a requirement for staff who transport residents to report any changes in their license status. Clusters all provisions relating to volunteers together.

e. Reworks the staff and resident tuberculosis screening requirements to conform with the language of the Division of Tuberculosis Control in the Department of Health.

f. Removes the requirement to retain face sheets permanently.

g. Amends the qualifications section to require the facility to follow the procedures of the governing authority or locality and ensure employees meet applicable job qualifications.

h. Deletes the provision requiring a procedure regarding political activity on the premises.

6. The following changes are proposed to Physical Environment:

a. Amends requirements relating to fire inspections.

b. Groups all space utilization requirements into one section and removes the current regulatory requirements to accommodate study space and all requirements relating to live-in staff.

c. Does not require the sleeping environment to be conducive to sleep and rest.

d. Deletes the space requirements for a dining area and school classrooms.

e. Removes prohibition on allowing residents to prepare food.

7. The following changes are proposed to Safety and Security:

a. Clarifies the requirements for residents and contract workers in implementing and training on the emergency/evacuation plan.

b. Reworks the searches of residents section to address facility specific issues.

c. Adds a section requiring a procedure if residents are allowed to access the Internet.

d. Prohibits weapons on the premises except by law enforcement and defines "weapon."

e. Deletes the requirement for safety rules for the use and maintenance of power equipment.

8. The following changes are proposed to Residents' Rights:

a. Changes requirement to mail visitation procedure from within 24 hours to by "the end of the next business day."

b. Adds a section titled "Contact with attorneys, courts, and law enforcement."

c. Removes the provisions regarding incontinent residents.

9. The following change is proposed to Program Operation:

Separates and reworks the sections regarding individual service plans and quarterly reports.

10. Reworks and updates the health care sections.

11. The following changes are proposed to Behavior Management:

a. Changes the requirement for all residents to have a behavior support plan to a requirement for a plan to be developed when there is a need for supports in addition to those provided for in the behavior management program.

b. Prohibits the use of chemical agents.

12. Redrafts confusing language and deletes unnecessary verbiage.

13. Makes other technical and stylistic changes, such as deleting provisions that are duplicative of other regulatory or statutory requirements (such as the restatement that the facility must comply with laws or procedures).

Issues: The Board of Juvenile Justice serves as the regulatory authority for secure residential facilities, both juvenile correctional centers and local detention centers, and the group homes and halfway houses operated by or funded through the department. Currently, these facilities are governed by two separate regulations: (i) the Standards for Juvenile Residential Facilities (6VAC35-140) and (ii) Standards for the Interim Regulation of Children's Residential Facilities (6VAC35-51), unless specifically exempted.

The current regulatory scheme has several difficulties in application. Each regulation has the full force and effect of law; unfortunately, some of the provisions are contradictory or conflict. Additionally, there are numerous exclusions for the different types of facilities from a variety of regulatory provisions. Sometimes it is unclear exactly which facilities are exempted and to which section or subsection such exceptions are applicable.

To address these issues the department considered two courses of action: (i) consolidate the two existing regulations into one or (ii) separate the two regulations into three regulations, one for each different type of facility regulated by the board.

Due to the distinct characteristics of the types of facilities regulated by the Board of Juvenile Justice and the complexity of applying a single regulation to the appropriate facility, it was concluded that it would be difficult to regulate all such facilities in one single regulation. The board approved pursuing the second course of action. Thus, the department is proposing separate regulations for the three distinct types of facilities it regulates: (i) juvenile correctional centers; (ii) detention centers; and (iii) group homes and halfway houses.

Having clear, concise regulations is essential to protecting the health, safety, and welfare of residents in group homes and halfway houses and citizens in the community. With clear expectations for the administrators running these facilities, the facilities will be able to be run more smoothly, which will become extremely important in this current climate of limited financial resources, and will continue to allow for supporting the needs of the residents, thus supporting the overall rehabilitation and community safety goals of the department.

This regulation poses no known disadvantages to the public or the Commonwealth.

The Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. The Board of Juvenile Justice (Board) proposes to consolidate the provisions of two current regulations (6VAC35-51 and 6VAC35-140) into one new regulation that will govern juvenile group homes and halfway houses. Most provisions in this new regulation will not vary in any substantive way from those mandated by current regulation, current Board policy, and current law. There are, however, several new requirements in the new regulation. Specifically, the Board proposes to:

• Require copies of facilities' visitation procedures to be mailed to parents of new residents by the end of the business day immediately following the resident's admission,

• Allow greater flexibility in the timing of yearly fire inspections,

• Eliminate the requirements that staff write an initial plan that outlines a structured program of care and a daily routine within three days and a behavior support plan with 30 days of a resident's commitment,

• Allow an exception to daily shower requirements for times when there are draught conditions,

• Require facility staff to enrolled new residents in school within five days of admission,

• Require approval from a parent, placing agency and facility administrator before a resident can visit the home of a facility employee, and

• Require each facility to formulate an Internet usage policy for residents.

Result of Analysis. The benefits likely exceed the costs for all proposed changes. The costs and benefits of these changes are discussed below.

Estimated Economic Impact. Current regulations require that copies of facilities' visitation procedures to be mailed to parents of new residents within 24 hours of the resident's admission. The Board proposes to change this requirement so that facility staff have until the end of the business day following an admission to mail this information. Facility staff will benefit from having slightly more flexibility to mail out information to parents on days when mail is picked up and as it fits into staff duties.

Current regulations require group homes and halfway houses to undergo a fire inspection at least every 13 months. Since fire inspectors, rather than facility staff, conduct these inspections, this puts staff in an untenable position of guaranteeing the timing of someone else's work. The Board proposes to change the regulation so that staff must attempt to arrange a fire inspection within 13 months of the previous inspection, maintain documentation of current certification and document attempts to schedule the fire inspection should that inspection not be completed within 13 months of the last inspection. This change will benefit facility staff by only making them responsible for the actions that they can take.

Current regulations require facility staff to draft a plan that outlines a structured program of care and a daily routine for new residents within three days of their commitment. The Board proposes to replace this requirement with a provision for new residents to participate in ongoing programs upon arrival (and until release). The Board also proposes to eliminate the requirement that staff write a behavior support plan within 30 days of admission. Since all aspects of life in these facilities are already structured, and each facility has a behavior management program that is applicable to all residents, the Board believes that requiring separate written plans for each resident is duplicative and unnecessary. Staff at group homes and halfway houses are likely to benefit from this regulatory change because it allows them to eliminate a task that likely does not benefit residents.

Current regulation requires facilities to allow residents to take showers every day. The Board proposes to allow an exception to this rule if the Governor declares a state of emergency due to draught conditions or if a locality implements water restrictions. This exception will allow facility administrators to restrict showers, after consultation with local health officials, until such time as water restrictions are lifted. Any alternate shower schedule will have to account for situations where daily showers are a medical necessity. This change will benefit group homes and halfway houses, particularly those in rural areas that rely on wells that can run dry if overused during droughts, by allowing them greater flexibility in extraordinary circumstances where it would be detrimental to follow the normal rules.

Current regulations require facility staff to enroll new residents in school within five days of admission. Because this rule does not allow flexibility in situations (summer or holiday breaks) when schools may not be open, the Board proposes to only require that staff attempt to enroll new residents in school within five days. This change will benefit facility staff by only making them responsible for the actions that they can take to ensure compliance with the law.

Current regulations require the approval of a legal guardian and placing agency before a resident can visit the home of a facility employee. The Board proposes to change this requirement so that such visits require the approval of a parent, placing agency, and the facility administrator before they can occur. This change will likely benefit all parties by ensuring that anyone who has legal responsibility for a resident knows, and approves of, his or her whereabouts.

Current regulations have no rules for Internet usage by residents of group homes and halfway houses. The Board proposes to require that each facility have rules if residents are allowed to access the Internet. This change will benefit staff at facilities as well as residents by allowing both groups to know the rules that they will be respectively enforcing and governed by.

Businesses and Entities Affected. DJJ reports that this regulation will affect the 24 locally, privately or commission operated juvenile group homes and halfway houses.

Localities Particularly Affected. No locality will be particularly affected by this proposed regulatory action.

Projected Impact on Employment. This regulatory action will likely have no impact on employment in the Commonwealth.

Effects on the Use and Value of Private Property. This regulatory action will likely have no effect on the use or value of private property in the Commonwealth.

Small Businesses: Costs and Other Effects. Small businesses in the Commonwealth are unlikely to incur any costs on account of this regulatory action.

Small Businesses: Alternative Method that Minimizes Adverse Impact. Small businesses in the Commonwealth are unlikely to incur any costs on account of this regulatory action.

Real Estate Development Costs. This regulatory action will likely have no effect on real estate development costs in the Commonwealth.

Legal Mandate. The Department of Planning and Budget (DPB) has analyzed the economic impact of this proposed regulation in accordance with § 2.2-4007.04 of the Administrative Process Act and Executive Order Number 36 (06). Section 2.2-4007.04 requires that such economic impact analyses include, but need not be limited to, the projected number of businesses or other entities to whom the regulation would apply, the identity of any localities and types of businesses or other entities particularly affected, the projected number of persons and employment positions to be affected, the projected costs to affected businesses or entities to implement or comply with the regulation, and the impact on the use and value of private property. Further, if the proposed regulation has adverse effect on small businesses, § 2.2-4007.04 requires that such economic impact analyses include (i) an identification and estimate of the number of small businesses subject to the regulation; (ii) the projected reporting, recordkeeping, and other administrative costs required for small businesses to comply with the regulation, including the type of professional skills necessary for preparing required reports and other documents; (iii) a statement of the probable effect of the regulation on affected small businesses; and (iv) a description of any less intrusive or less costly alternative methods of achieving the purpose of the regulation. The analysis presented above represents DPB's best estimate of these economic impacts.

Agency's Response to the Department of Planning and Budget's Economic Impact Analysis: The responsible Virginia Board of Juvenile Justice agency representatives have reviewed the Department of Planning and Budget's (DPB) economic impact analysis of 6VAC35-41, Regulation Governing Juvenile Group Homes and Halfway Houses. The agency is in agreement with DPB's analysis.

Summary:

The Board of Juvenile Justice (board) proposes to consolidate the provisions of two current regulations (6VAC35-51 and 6VAC35-140) into one new regulation (6VAC35-41) that will govern juvenile residential facilities funded under the Virginia Juvenile Community Crime Control Act (group homes) and halfway houses operated by the Department of Juvenile Justice. Both current regulations address the requirements not only for group homes and halfway houses, but also for juvenile correctional centers and detention centers. The primary intent of this regulatory overhaul is to reduce confusion in applying the regulatory requirements in each distinct type of facility. After a comprehensive review, amendments were made to accommodate the type of facility's specific needs and to enhance program and service requirements to best provide for the residents.

Most provisions in the new regulation will not vary in any substantive way from those mandated by current regulation, board policy, or law. However, several new provisions include: (i) requiring copies of facilities' visitation procedures to be mailed to parents of new residents by the end of the business day immediately following the resident's admission; (ii) allowing greater flexibility in the timing of yearly fire inspections; (iii) eliminating the requirements that staff write an initial plan that outlines a structured program of care and a daily routine within three days and a behavior support plan within 30 days of a resident's commitment; (iv) allowing an exception to daily shower requirements for times when there are draught conditions; (v) requiring facility staff to enrolled new residents in school within five days of admission; (vi) requiring approval from a parent, placing agency, and facility administrator before a resident can visit the home of a facility employee; and (vii) requiring each facility to formulate an Internet usage policy for residents.

CHAPTER 41
REGULATION GOVERNING JUVENILE GROUP HOMES AND HALFWAY HOUSES

Part I
General Provisions

6VAC35-41-10. Definitions.

The following words and terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise:

"Annual" means within 13 months of the previous event or occurrence.

"Board" means Board of Juvenile Justice.

"Case record" or "record" means written or electronic information relating to one resident and the resident's family, if applicable. This information includes, but is not limited to, social, medical, psychiatric, and psychological records; reports; demographic information; agreements; all correspondence relating to care of the resident; service plans with periodic revisions; aftercare plans and discharge summary; and any other information related to the resident.

"Contraband" means any item possessed by or accessible to a resident or found within a facility or on its premises (i) that is prohibited by statute, regulation, or facility procedure, (ii) that is not acquired through approved channels or in prescribed amounts, or (iii) that may jeopardize the safety and security of the facility or individual residents.

"Department" or "DJJ" means the Department of Juvenile Justice.

"Direct care staff" means the staff whose primary job responsibilities are (i) maintaining the safety, care, and well-being of residents and (ii) implementing the structured program of care and behavior management program.

"Direct supervision" means that the staff may work with residents while not in the presence of direct care staff. Staff members who provide direct supervision are responsible for maintaining the safety, care, and well-being of the residents in addition to providing services or performing the primary responsibilities of that position.

"Director" means the Director of the Department of Juvenile Justice.

"Emergency" means a sudden, generally unexpected occurrence or set of circumstances demanding immediate action such as a fire, chemical release, loss of utilities, natural disaster, taking of hostages, major disturbances, escape, and bomb threats. Emergency does not include regularly scheduled employee time off or other situations that could be reasonably anticipated.

"Facility administrator" means the individual who has the responsibility for the on-site management and operation of the facility on a regular basis.

"Family oriented group home" means a private home in which residents may reside upon placement by a lawful placing agency.

"Group home" means a juvenile residential facility that is a community based, home-like single dwelling, or its acceptable equivalent, other than the private home of the operator, and does not exceed the capacity approved by the regulatory authority. For the purpose of this chapter, a group home includes a halfway house that houses residents in transition from a commitment to the department.

"Individual service plan" or "service plan" means a written plan of action developed, revised as necessary, and reviewed at intervals to meet the needs of a resident. The individual service plan specifies (i) measurable short-term and long-term goals and (ii) the objectives, strategies, and time frames for reaching the goals.

"Juvenile residential facility" or "facility" means a publicly or privately operated facility or placement where 24-hour per day care is provided to residents who are separated from their legal guardians and that is required to be licensed or certified. As used in this regulation, the term includes, but is not necessarily limited to, group homes, family-oriented group homes, and halfway houses and excludes juvenile correctional centers and juvenile detention centers.

"Living unit" means the space in which a particular group of residents in care of a juvenile residential facility reside. A living unit contains sleeping areas, bath and toilet facilities, and a living room or its equivalent for use by the residents of the living unit. Depending upon its design, a building may contain one living unit or several separate living units.

"On duty" means the period of time an employee is responsible for the direct supervision of one or more residents.

"Parent" or "legal guardian" means (i) a biological or adoptive parent who has legal custody of an individual, including either parent if custody is shared under a joint decree or agreement; (ii) a biological or adoptive parent with whom the individual regularly resides; (iii) a person judicially appointed as a legal guardian; or (iv) a person who exercises the rights and responsibilities of legal custody by delegation from a biological or adoptive parent, upon provisional adoption, or otherwise by operation of law.

"Placement" means an activity by any person that provides assistance to a placing agency, parent, or legal guardian in locating and effecting the movement of a resident to a juvenile residential facility.

"Placing agency" means (i) any person, group, court, court service unit, or agency licensed or authorized by law to place residents in a juvenile residential facility or (ii) a local board of social services authorized to place residents in a juvenile residential facility.

"Premises" means the tracts of land on which any part of a facility is located and any buildings on such tracts of land.

"Provider" means the person, corporation, partnership, association, locality, commission, or public agency to whom a license or certificate is issued and who is legally responsible for compliance with the regulatory and statutory requirements relating to the facility.

"Regulatory authority" means the board or the department as designated by the board.

"Resident" means an individual who is legally placed in, formally placed in, or admitted to a juvenile residential facility for supervision, care, training, or treatment on a 24-hour per day basis.

"Rules of conduct" means a listing of a facility's rules or regulations that is maintained to inform residents and others of the behavioral expectations of the behavior management program, about behaviors that are not permitted, and about the sanctions that may be applied when impermissible behaviors occur.

"Shelter care facility" means a facility or an emergency shelter specifically approved to provide a range of services, as needed, on an individual basis not to exceed 90 days.

"Written" means the required information is communicated in writing. Such writing may be available in either hard copy or in electronic form.

6VAC35-41-20. Applicability.

This chapter applies to group homes, halfway houses, shelter care, and other applicable juvenile residential facilities regulated by the board as authorized by statute. Parts I (6VAC35-41-10 et seq.) through VI (6VAC35-41-710 et seq.), XII (6VAC35-41-1150 et seq.), and XIII (6VAC35-41-1290 et seq.) of this chapter apply to all juvenile residential facilities, with the exception of family-oriented group homes, governed by this regulation unless specifically excluded. Parts VII (6VAC35-41-950) through XI (6VAC35-41-1120 et seq.) of this chapter apply only to the specific programs or facilities as indicated.

6VAC35-41-30. Previous regulations terminated.

This chapter replaces the Standards for the Interim Regulation of Children's Residential Facilities (6VAC35-51) and the Standards for Juvenile Residential Facilities (6VAC35-140) for the regulation of all juvenile residential facilities as defined herein. The Standards for the Interim Regulation of Children's Residential Facilities and the Standards for Juvenile Residential Facilities remain in effect for juvenile detention facilities and juvenile correctional centers, regulated by the board, until such time as the board adopts new regulations related thereto.

6VAC35-41-40. Certification.

A. The provider shall comply with the provisions of the Regulations Governing the Monitoring, Approval, and Certification of Juvenile Justice Programs (6VAC35-20). The provider shall:

1. Demonstrate compliance with this chapter, other applicable regulations issued by the board, and applicable statutes and regulations;

2. Implement approved plans of action to correct findings of noncompliance are being implemented; and

3. Ensure no noncompliance may pose an immediate and direct danger to residents.

B. The provider shall maintain the documentation necessary to demonstrate compliance with this chapter for a minimum of three years.

C. The current certificate shall be posted at all times in each facility in a place conspicuous to the public.

6VAC35-41-50. Age of residents.

A. Facilities shall admit residents only in compliance with the age limitations approved by the board in establishing the facility's certification capacity, except as provided in subsection B of this section.

B. A facility shall not admit a resident who is above the age approved for licensure. A child may remain in the facility above the age of licensed capacity (i) to allow the resident to complete a program identified in the resident's individual service plan and (ii) if a discharge plan has been established. This subsection does not apply to shelter care programs.

6VAC35-41-60. Relationship to the regulatory authority.

A. All reports and information as the regulatory authority may require to establish compliance with this chapter and other applicable regulations and statutes shall be submitted to or made available to the regulatory authority.

B. A written report of any contemplated changes in operation that would affect the terms of the license or certificate or the continuing eligibility for licensure or certification shall be submitted to the regulatory authority. A change may not be implemented prior to approval by the regulatory authority.

6VAC35-41-70. Relationship with the department.

A. The director or designee shall be notified within five working days of any significant change in administrative structure or newly hired facility administrator.

B. Any of the following that may be related to the health safety or human rights of residents shall be self-reported to the director or designee within 10 days: (i) lawsuits against the facility or its governing authority and (ii) settlements with the facility or its governing authority.

6VAC35-41-80. Variances.

A. Board action may be requested by the facility administrator to relieve a facility from having to meet or develop a plan of action for the requirements of a specific section or subsection of this regulation, either permanently or for a determined period of time, as provided in the Regulations Governing the Monitoring, Approval, and Certification of Juvenile Justice Programs (6VAC35-20).

B. Any such variance may not be implemented prior to approval of the board.

6VAC35-41-90. Serious incident reports.

A. The following events shall be reported within 24 hours to: (i) to the placing agency, (ii) to the parent or legal guardian, or both, as applicable and appropriate, and (iii) the director or designee:

1. Any serious incident, accident, illness, or injury to the resident;

2. The death of a resident;

3. Any overnight absence from the facility without permission;

4. Any runaway;

5. Any fire, hostage or emergency situation, or natural disaster that jeopardizes the health, safety, and welfare of the residents; and

6. Any suspected case of child abuse or neglect at the facility, on a facility event or excursion, or involving facility center staff as provided in 6VAC35-41-100 (suspected child abuse or neglect).

The 24 hour reporting requirement may be extended when the emergency situation or natural disaster has made such communication impossible (e.g., modes of communication are not functioning). In such cases, notice shall be provided as soon as feasible thereafter.

B. The provider shall notify the director or designee within 24 hours of any events detailed in subsection A of this section and all other situations required by the regulatory authority of which the facility has been notified.

C. The facility shall (i) prepare and maintain a written report of the events listed in subsections A and B of this section and (ii) submit a copy of the written report to the director or designee. The report shall contain the following information:

1. The date and time the incident occurred;

2. A brief description of the incident;

3. The action taken as a result of the incident;

4. The name of the person who completed the report;

5. The name or identifying information of the person who made the report to the placing agency and to either the parent or legal guardian, as appropriate and applicable; and

6. The name of or identifying information provided by the person to whom the report was made, including any law enforcement or child protective service personnel.

D. The resident's record shall contain a written reference (i) that an incident occurred and (ii) of all applicable reporting.

E. In addition to the requirements of this section, any serious incident involving an allegation of child abuse or neglect at the facility, at a facility sponsored event, or involving facility staff shall be governed by 6VAC35-41-100 (suspected child abuse or neglect).

6VAC35-41-100. Suspected child abuse or neglect.

A. When there is a reason to suspect that a child is an abused or neglected child, the matter shall be reported immediately to the local department of social services as required by § 63.2-1509 of the Code of Virginia and in accordance with the written procedures.

B. Written procedures shall be distributed to all staff members and shall at a minimum provide for the following:

1. Handling accusations against staff;

2. Reporting and documenting suspected cases of child abuse and neglect; and

3. Cooperating during any investigation.

C. Any case of suspected child abuse or neglect shall be reported and documented as required in 6VAC35-41-90 (serious incident reports). The resident's record shall contain a written reference that a report was made.

6VAC35-41-110. Grievance procedure.

A. Written procedure shall provide that residents are oriented to and have continuing access to a grievance procedure that provides for:

1. Resident participation in the grievance process with assistance from staff upon request;

2. Investigation of the grievance by an objective employee who is not the subject of the grievance;

3. Documented, timely responses to all grievances with the reasons for the decision;

4. At least one level of appeal;

5. Administrative review of grievances;

6. Protection from retaliation or threat of retaliation for filing a grievance; and

7. Hearing of an emergency grievance within eight hours.

B. Each resident shall be oriented to the grievance procedure in an age or developmentally appropriate manner.

C. The grievance procedure shall be (i) written in clear and simple language and (ii) posted in an area easily accessible to residents and their parents and legal guardians.

D. Staff shall assist and work cooperatively with other employees in facilitating the grievance process.

Part II
Administrative and Personnel

Article 1
General Provisions

6VAC35-41-120. Responsibilities of the provider or governing authority.

A. The provider shall clearly identify the corporation, association, partnership, individual, or public agency that is the holder of the certificate (governing authority). Any change in the identity or corporate status of the governing authority or provider shall be reported to the director or designee.

B. The governing authority shall appoint a facility administrator to whom it delegates the authority and responsibility for administrative direction of the facility.

C. A written decision-making plan shall be developed and implemented and shall provide for a staff person with the qualifications of a facility administrator to be designated to assume the temporary responsibility for the operation of the facility. Each plan shall include an organizational chart.

D. The provider shall have a written statement of its (i) purpose, (ii) population served, and (iii) available services for each facility subject to this regulation.

E. Written procedures shall be developed and implemented to monitor and evaluate quality assurance in each facility. Improvements shall be implemented when indicated.

6VAC35-41-130. Insurance.

A. Documentation of the following insurance coverage shall be maintained:

1. Liability insurance covering the premises and the facility's operations, including all employees and volunteers, if applicable.

2. Insurance necessary to comply with Virginia's minimum insurance requirements for all vehicles used to transport residents.

B. Staff who use personal vehicles for official business, including transporting residents, shall be informed of the requirements to provide and document insurance coverage for such purposes.

6VAC35-41-140. Participation of residents in human research.

A. The provider shall have procedures approved by its governing authority to govern the review, approval, and monitoring of human research. Human research means any systematic investigation, including research development, testing, and evaluating, involving human subjects, including but not limited to a resident or his parents, guardians, or family members, that is designed to develop or contribute to generalized knowledge. Human research does not include statistical analysis of information readily available on the subject that does not contain any identifying information or research exempted by federal research regulations pursuant to 45 CFR 46.101(b).

B. Information on residents shall be maintained as provided in 6VAC35-41-330 (maintenance of residents' records) and all records and information related to the human research shall be kept confidential in accordance with applicable laws and regulations.

C. The provider may require periodic progress reports of any research project and a formal final report of all completed research projects.

Article 2
Hiring

6VAC35-41-150. Job descriptions.

A. There shall be a written job description for each position that, at a minimum, includes the:

1. Job title or position;

2. Duties and responsibilities of the incumbent;

3. Job title or identification of the immediate supervisor; and

4. Minimum education, experience, knowledge, skills, and abilities required for entry level performance of the job.

B. A copy of the job description shall be given to each person assigned to a position prior to assuming that position's duties.

6VAC35-41-160. Qualifications.

A. Facilities subject to (i) the rules and regulations of a governing authority or (ii) the rules and regulations of a local government personnel office shall develop written minimum entry-level qualifications in accord with the rules and regulations of the supervising personnel authority. Facilities not subject to rules and regulations of the governing authority or a local government personnel office shall follow the minimum entry-level qualifications of the Virginia Department of Human Resource Management.

B. When services or consultations are obtained on a contractual basis, they shall be provided by professionally qualified personnel.

C. Each facility shall provide documentation of contractual agreements or staff expertise to provide educational services, counseling services, psychological services, medical services, or any other services needed to serve the residents in accordance with the facility's program description as defined by the facility's criteria of admission, required by 6VAC35-41-730 B (application for admission).

6VAC35-41-170. Physical examination.

When the qualifications for a position require a given set of physical abilities, all persons selected for such positions shall be examined by a physician at the time of employment to ensure that they have the level of medical health or physical ability required to perform assigned duties. Persons hired into positions that require a given set of physical abilities may be reexamined annually in accordance with written procedures.

6VAC35-41-180. Employee and volunteer background checks.

A. Except as provided in subsection C of this section, all persons who (i) accept a position of employment at, (ii) volunteer on a regular basis and will be alone with a resident in the performance of their duties, or (iii) provide contractual services directly to a resident on a regular basis and will be alone with a resident in the performance of his duties in a juvenile residential facility shall undergo the following background checks in accordance with § 63.2-1726 of the Code of Virginia to ascertain whether there are criminal acts or other circumstances that would be detrimental to the safety of residents in the facility:

1. A reference check;

2. A criminal history check;

3. A fingerprint check with the Virginia State Police and Federal Bureau of Investigations (FBI);

4. A central registry check with Child Protective Services; and

5. A driving record check if applicable to the individual's job duties.

B. To minimize vacancy time when the fingerprint checks required by subdivision A 3 of this section have been requested, employees may be hired, pending the results of the fingerprint checks, provided:

1. All of the other applicable components of subsection A of this section have been completed;

2. The applicant is given written notice that continued employment is contingent on the fingerprint check results as required by subdivision A 3 of this section; and

3. Employees hired under this exception shall not be allowed to be alone with residents and may work with residents only when under the direct supervision of staff whose background checks have been completed, until such time as all background checks are completed.

C. Documentation of compliance with this section shall be retained in the individual's personnel record as provided in 6VAC35-41-310 (personnel records).

D. Written procedures shall provide for the supervision of nonemployee persons, who are not subject to the provisions of subsection A of this section and who have contact with residents.

Article 3
Employee Orientation and Training

6VAC35-41-190. Required initial orientation.

A. Before the expiration of the employee's seventh work day at the facility, each employee shall be provided with a basic orientation on the following:

1. The facility;

2. The population served;

3. The basic objectives of the program;

4. The facility's organizational structure;

5. Security, population control, emergency preparedness, and evacuation procedures in accordance with 6VAC35-41-490 (emergency and evacuation procedures);

6. The practices of confidentiality;

7. The residents' rights; and

8. The basic requirements of and competencies necessary to perform in his positions.

B. Prior to working with residents while not under the direct supervision of staff who have completed all applicable orientations and training, each direct care staff shall receive a basic orientation on the following:

1. The facility's program philosophy and services;

2. The facility's behavior management program;

3. The facility's behavior intervention procedures and techniques, including the use of least restrictive interventions and physical restraint;

4. The residents' rules of conduct and responsibilities;

5. The residents' disciplinary and grievance procedures;

6. Child abuse and neglect and mandatory reporting;

7. Standard precautions; and

8. Documentation requirements as applicable to his duties.

C. Volunteers shall be oriented in accordance with 6VAC35-41-300 (orientation and training for volunteers or interns).

6VAC35-41-200. Required initial training.

A. Each full-time and part-time employee and relief staff shall complete initial, comprehensive training that is specific to the individual's occupational class, is based on the needs of the population served, and ensures that the individual has the competencies to perform the jobs.

1. Direct care staff shall receive at least 40 hours of training, inclusive of all training required by this section, in their first year of employment.

2. Contractors shall receive training required to perform their position responsibilities in a juvenile residential facility.

B. Within 30 days following the employee's start date at the facility or before the employee is responsible for the direct supervision of a resident, all direct care staff and staff who provide direct supervision of the residents while delivering services, with the exception of workers employed by contract to provide behavioral health or health care services, shall complete training in the following areas:

1. Emergency preparedness and response;

2. First aid and cardiopulmonary resuscitation, unless the individual is currently certified, with certification required as applicable to their duties;

3. The facility's behavior management program;

4. The residents' rules of conduct and the rationale for the rules;

5. The facility's behavior intervention procedures, with physical and mechanical restraint training required as applicable to their duties;

6. Child abuse and neglect;

7. Mandatory reporting;

8. Maintaining appropriate professional relationships;

9. Interaction among staff and residents;

10. Suicide prevention;

11. Residents' rights;

12. Standard precautions; and

13. Procedures applicable to the employees' position and consistent with their work profiles.

C. Employees who administer medication shall have, prior to such administration, successfully completed a medication training program approved by the Board of Nursing or be licensed by the Commonwealth of Virginia to administer medication.

D. Training shall be required by and provided as appropriate to the individual's job duties and in accordance with the provider's training plan.

E. When an individual is employed by contract to provide services for which licensure by a professional organization is required, documentation of current licensure shall constitute compliance with this section.

F. Volunteers and interns shall be trained in accordance 6VAC35-41-300 (orientation and training for volunteers or interns).

6VAC35-41-210. Required retraining.

A. Each employee, relief staff, and contractor shall complete retraining that is specific to the individual's occupational class and the position's job description and addresses any professional development needs.

B. All staff shall complete an annual training refresher on the facility's emergency preparedness and response plan and procedures.

C. All direct care staff and staff who provide direct supervision of the residents while delivering services, with the exception of workers who are employed by contract to provide behavioral health or health care services, shall complete at least 40 hours of training annually that shall include training in the following areas:

1. Suicide prevention;

2. Child abuse and neglect;

3. Mandatory reporting;

4. Standard precautions; and

5. Behavior intervention procedures.

D. Staff required by their position to have certification in cardiopulmonary resuscitation and first aid shall receive training sufficient to maintain current certifications.

E. Employees who administer medication shall complete an annual refresher training on the administration of medication.

F. Retraining shall (i) be required by and provided as appropriate to the individual's job duties, (ii) address any needs identified by the individual and the supervisor, if applicable, and (iii) be in accordance with the provider's training plan.

G. When an individual is employed by contract to provide services for which licensure by a professional organization is required, documentation of current licensure shall constitute compliance with this section.

H. Staff who have not timely completed required retraining shall not be allowed to have direct care responsibilities pending completion of the retraining requirements.

Article 4
Personnel

6VAC35-41-220. Written personnel procedures.

The provider shall have and implement provider approved written personnel procedures and make these readily accessible to each staff member.

6VAC35-41-230. Code of ethics.

A written code of ethics shall be available to all employees.

6VAC35-41-240. Reporting criminal activity.

A. Staff shall be required to report all known criminal activity by residents or staff to the facility administrator for appropriate action.

B. The facility administrator, in accordance with written procedures, shall notify the appropriate persons or agencies, including law enforcement, child protective services, and the department as appropriate and applicable, of suspected criminal violations by residents or staff. Suspected criminal violations relating to the health and safety or human rights of residents shall be reported to the director or designee.

C. The facility shall assist and cooperate with the investigation of any such complaints and allegations as necessary.

6VAC35-41-250. Notification of change in driver's license status.

Staff whose job responsibilities may involve transporting residents shall (i) maintain a valid driver's license and (ii) report to the facility administrator or designee any change in their driver's license status including but not limited to suspensions, restrictions, and revocations.

6VAC35-41-260. Physical or mental health of personnel.

When an individual poses a direct threat to the health and safety of a resident, others at the facility, or the public or is unable to perform essential job-related functions, that individual shall be removed immediately from all duties involved in the direct care or direct supervision of residents. The facility may require a medical or mental health evaluation to determine the individual's fitness for duty prior to returning to duties involving the direct care or direct supervision of residents. The results of any medical information or documentation of any disability related inquiries shall be maintained separately from the employee's personnel records maintained in accordance with 6VAC35-41-310 (personnel records). For the purpose of this section a direct threat means a significant risk of substantial harm.

Article 5
Volunteers

6VAC35-41-270. Definition of volunteers or interns.

For the purpose of this chapter, volunteer or intern means any individual or group who of their own free will provides goods and services without competitive compensation.

6VAC35-41-280. Selection and duties of volunteers or interns.

A. Any facility that uses volunteers or interns shall develop and implement written procedures governing their selection and use. Such procedures shall provide for the objective evaluation of persons and organizations in the community who wish to associate with the residents.

B. Volunteers and interns shall have qualifications appropriate for the services provided.

C. The responsibilities of interns and individuals who volunteer on a regular basis shall be clearly defined in writing.

D. Volunteers and interns shall neither be responsible for the duties of direct care staff nor for the direct supervision of the residents.

6VAC35-41-290. Background checks for volunteers or interns.

A. Any individual who (i) volunteers on a regular basis or is an intern and (ii) will be alone with a resident in the performance of that position’s duties shall be subject to the background check requirements provided for in 6VAC35-41-180 A (employee and volunteer background checks).

B. Documentation of compliance with the background check requirements shall be maintained for each intern and each volunteer for whom a background investigation is required. Such records shall be kept in accordance with 6VAC35-41-310 (personnel records).

C. A facility that uses volunteers shall have procedures for supervising volunteers, on whom background checks are not required or whose background checks have not been completed, who have contact with residents.

6VAC35-41-300. Orientation and training for volunteers or interns.

A. Volunteers and interns shall be provided with a basic orientation on the following:

1. The facility;

2. The population served;

3. The basic objectives of the facility;

4. The facility's organizational structure;

5. Security, population control, emergency, emergency preparedness, and evacuation procedures;

6. The practices of confidentiality;

7. The residents' rights; and

8. The basic requirements of and competencies necessary to perform their duties and responsibilities.

B. Volunteers and interns shall be trained within 30 days from their start date at the facility in the following:

1. Any procedures that are applicable to their duties and responsibilities; and

2. Their duties and responsibilities in the event of a facility evacuation.

Article 6
Employee Records

6VAC35-41-310. Personnel records.

A. Separate up-to-date written or automated personnel records shall be maintained on each (i) employee and (ii) volunteer or intern on whom a background check is required.

B. The records of each employee shall include:

1. A completed employment application form or other written material providing the individual's name, address, phone number, and social security number or other unique identifier;

2. Educational background and employment history;

3. Written references or notations of oral references;

4. Annual performance evaluations;

5. Date of employment for each position held and date of separation;

6. Documentation of compliance with requirements of Virginia law regarding child protective services and criminal history background investigations;

7. Documentation of the verification of any educational requirements and of professional certification or licensure if required by the position;

8. Documentation of all training required by this chapter and any other training received by individual staff; and

9. A current job description.

C. If applicable, health records, including reports of any required health examinations, shall be maintained separately from the other records required by this section.

D. The personnel records of volunteers and contractual service providers may be limited to documentation of compliance with the background checks as required by 6VAC35-41-180 (employee and volunteer background checks).

6VAC35-41-320. Employee tuberculosis screening and follow-up.

A. On or before the employee's start date at the facility each employee shall submit evidence of freedom from tuberculosis in a communicable form that is no older than 30 days, The documentation shall indicate the screening results as to whether there is an absence of tuberculosis in a communicable form.

B. Each employee shall submit evidence of an annual evaluation of freedom from tuberculosis in a communicable form.

C. Employees shall undergo a subsequent tuberculosis screening or evaluation, as applicable, in the following circumstances:

1. The employee comes into contact with a known case of infectious tuberculosis; or

2. The employee develops chronic respiratory symptoms of three weeks duration.

D. Employees suspected of having tuberculosis in a communicable form shall not be permitted to return to work or have contact with staff or residents until a physician has determined that the individual does not have tuberculosis in a communicable form.

E. Any active case of tuberculosis developed by an employee or a resident shall be reported to the local health department in accordance with the requirements of the Commonwealth of Virginia State Board of Health Regulations for Disease Reporting and Control (12VAC5-90).

F. Documentation of any screening results shall be retained in a manner that maintains the confidentiality of information.

G. The detection, diagnosis, prophylaxis, and treatment of pulmonary tuberculosis shall be performed in compliance with Screening for TB Infection and Disease, Policy 99-001, Virginia Department of Health's Division of Tuberculosis Prevention and Control.

Article 7
Residents' Records

6VAC35-41-330. Maintenance of residents' records.

A. A separate written or automated case record shall be maintained for each resident that shall include all correspondence and documents received by the facility relating to the care of that resident and documentation of all case management services provided.

B. A separate health record may be kept on each resident. The resident's active health records shall be readily accessible in case of emergency and shall be made available to authorized staff consistent with applicable state and federal statutes and regulations.

C. Each case record and health record shall be kept (i) up to date, (ii) in a uniform manner, and (ii) confidential from unauthorized access.

D. Written procedures shall provide for the management of all records, written and automated, and shall describe confidentiality, accessibility, security, and retention of records pertaining to residents, including:

1. Access, duplication, dissemination, and acquisition of information only to persons legally authorized according to federal and state laws;

2. Facilities using automated records shall address procedures that include:

a. How records are protected from unauthorized access;

b. How records are protected from unauthorized Internet access;

c. How records are protected from loss;

d. How records are protected from unauthorized alteration; and

e. How records are backed up.

3. Security measures to protect records (i) from loss, unauthorized alteration, inadvertent or unauthorized access, or disclosure of information; and (ii) during transportation of records between service sites;

4. Designation of person responsible for records management; and

5. Disposition of records in the event the facility ceases to operate.

E. Written procedure shall specify what information is available to the resident.

F. Active and closed written records shall be kept in secure locations or compartments that are accessible to authorized staff and shall be protected from unauthorized access, fire, and flood.

G. All case records shall be retained as governed by The Library of Virginia.

6VAC35-41-340. Face sheet.

A. At the time of admission each resident's record shall include, at a minimum, a completed face sheet that contains the following:

1. The resident's full name, last known residence, birth date, gender, race, unique numerical identifier, and admission date;

2. Names, addresses, and telephone numbers of the resident's placing agency, emergency contacts, legal guardians, and parents, as applicable and appropriate; and

B. Upon discharge, the date of and reason for discharge, names and addresses of persons to whom the resident was discharged, and forwarding address of the resident, if known, shall be recorded on the face sheet.

C. Information shall be updated when changes occur.

Part III
Physical Environment

6VAC35-41-350. Buildings and inspections.

A. All newly constructed buildings, major renovations to buildings, and temporary structures shall be inspected and approved by the local building official. Approval shall be documented by a certificate of occupancy.

B. A current copy of the facility's annual inspection by fire prevention authorities indicating that all buildings and equipment are maintained in accordance with the Virginia Statewide Fire Prevention Code (13VAC5-51) shall be maintained. If the fire prevention authorities have failed to timely inspect the facility's buildings and equipment, documentation of the facility's request to schedule the annual inspection as well as documentation of any necessary follow-up with fire prevention authorities shall be maintained.

C. The facility shall maintain a current copy of its annual inspection and approval, in accordance with state and local inspection laws, regulations, and ordinances, of the following:

1. General sanitation;

2. Sewage disposal system;

3. Water supply;

4. Food service operations; and

5. Swimming pools, if applicable.

6VAC35-41-360. Equipment and systems inspections and maintenance.

A. All safety, emergency, and communications equipment and systems shall be inspected, tested, and maintained by designated staff in accordance with the manufacturer's recommendations or instruction manuals or, absent such requirements, in accordance with a schedule that is approved by the facility administrator. Testing of such equipment and systems shall, at a minimum, be conducted quarterly.

B. Whenever safety, emergency, and communications equipment or a system is found to be defective, corrective action shall be taken to rectify the situation and to repair, remove, or replace the defective equipment.

6VAC35-41-370. Heating and cooling systems and ventilation.

A. Heat shall be distributed in all rooms occupied by the residents such that a temperature no less than 68°F is maintained, unless otherwise mandated by state or federal authorities.

B. Air conditioning or mechanical ventilating systems, such as electric fans, shall be provided in all rooms occupied by residents when the temperature in those rooms exceeds 80°F.

6VAC35-41-380. Lighting.

A. Sleeping and activity areas in the facility shall provide natural lighting.

B. All areas within buildings shall be lighted for safety and the lighting shall be sufficient for the activities being performed.

C. There shall be night lighting sufficient to observe residents.

D. Each facility shall have a plan for providing alternative lighting in case of emergencies.

E. Outside entrances and parking areas shall be lighted.

6VAC35-41-390. Plumbing and water supply; temperature.

A. Plumbing shall be maintained in operational condition, as designed.

B. An adequate supply of hot and cold running water shall be available at all times.

C. Precautions shall be taken to prevent scalding from running water. Water temperatures should be maintained at 100°F to 120°F.

6VAC35-41-400. Toilet facilities.

A. There shall be at least one toilet, one hand basin, and one shower or bathtub in each living unit.

B. There shall be at least one bathtub or bathtub alternative in each facility.

C. There shall be at least one toilet, one hand basin, and one shower or tub for every eight residents for facilities certified or licensed before July 1, 1981.

D. There shall be one toilet, one hand basin, and one shower or tub for every four residents in any building constructed or structurally modified after July 1, 1981. Facilities licensed or certified after December 28, 2007, shall comply with the one-to-four ratio.

E. The maximum number of staff members on duty in the living unit shall be counted in determining the required number of toilets and hand basins when a separate bathroom is not provided for staff.

F. There shall be at least one mirror securely fastened to the wall at a height appropriate for use in each room where hand basins are located.

G. When bathrooms are not designated for individual use:

1. Each toilet shall be enclosed for privacy, and

2. Bathtubs and showers shall provide visual privacy for bathing by use of enclosures, curtains, or other appropriate means.

H. Windows in bathrooms and dressing areas shall provide for privacy.

6VAC35-41-410. Sleeping areas.

A. Males and females shall have separate sleeping areas.

B. No more than four residents shall share a bedroom or sleeping area.

C. Beds shall be at least three feet apart at the head, foot, and sides; and double-decker beds shall be at least five feet apart at the head, foot, and sides.

D. Sleeping quarters in facilities established, constructed, or structurally modified after July 1, 1981, shall have:

1. At least 80 square feet of floor area in a bedroom accommodating one person;

2. At least 60 square feet of floor area per person in rooms accommodating two or more persons; and

3. Ceilings with a primary height at least 7-1/2 feet in height exclusive of protrusions, duct work, or dormers.

E. Mattresses shall be fire retardant as evidenced by documentation from the manufacturer except in buildings equipped with an automated sprinkler system as required by the Virginia Uniform Statewide Building Code (13VAC5-63).

F. Each resident shall be assigned drawer space and closet space, or their equivalent, that is accessible to the sleeping area for storage of clothing and personal belongings.

G. Windows in sleeping areas and dressing areas shall provide for privacy.

H. Every sleeping area shall have a door that may be closed for privacy or quiet and this door shall be readily opened in case of fire or other emergency.

6VAC35-41-420. Furnishings.

All furnishings and equipment shall be safe, clean, and suitable to the ages and number of residents.

6VAC35-41-430. Disposal of garbage and management of hazardous materials.

A. Provision shall be made for the collection and legal disposal of all garbage and waste materials.

B. All flammable, toxic, and caustic materials within the facility shall be stored, used, and disposed of in appropriate receptacles and in accordance with federal, state, and local requirements.

6VAC35-41-440. Smoking prohibitions.

Smoking shall be prohibited in living areas and in areas where residents participate in programs.

6VAC35-41-450. Space utilization.

A. Each facility shall provide for the following:

1. A living room;

2. An indoor recreation area with appropriate recreation materials;

3. An outdoor recreation area;

4. A dining area, where meals are served, that is equipped with tables and benches or chairs;

5. A visitation area that permits informal communication between residents and visitors, including the opportunity for physical contact in accordance with written procedures;

6. Kitchen facilities and equipment for the preparation and service of meals with any walk-in refrigerators or freezers equipped to permit emergency exits;

7. Space and equipment for laundry equipment if laundry is done at the facility;

8. Space for the storage of items such as first aid equipment, household supplies, recreational equipment, luggage, out-of-season clothing, and other materials; and

9. Space for administrative activities including, as appropriate to the program, confidential conversations and provision for storage of records and materials.

B. Spaces or areas may be interchangeably utilized but shall be in functional condition for the designated purposes.

6VAC35-41-460. Maintenance of the buildings and grounds.

A. The interior and exterior of all buildings and grounds shall be safe, maintained, and reasonably free of clutter and rubbish. This includes, but is not limited to, (i) required locks, mechanical devices, indoor and outdoor equipment, and furnishings; and (ii) all areas where residents, staff, and visitors may reasonably be expected to have access.

B. All buildings shall be reasonably free of stale, musty, or foul odors.

C. Buildings shall be kept reasonably free of flies, roaches, rats, and other vermin.

6VAC35-41-470. Animals on the premises.

A. Animals maintained on the premises shall be housed at a reasonable distance from sleeping, living, eating, and food preparation areas, as well as a safe distance from water supplies.

B. Animals maintained on the premises shall be tested, inoculated, and licensed as required by law.

C. The premises shall be kept reasonably free of stray domestic animals.

D. Pets shall be provided with clean sleeping areas and adequate food and water.

Part IV
Safety and Security

6VAC35-41-480. Fire prevention plan.

Each facility shall develop a fire prevention plan that provides for an adequate fire protection service.

6VAC35-41-490. Emergency and evacuation procedures.

A. The provider shall develop a written emergency preparedness and response plan for each facility. The plan shall address:

1. Documentation of contact with the local emergency coordinator to determine (i) local disaster risks, (ii) communitywide plans to address different disasters and emergency situations, and (iii) assistance, if any, that the local emergency management office will provide to the facility in an emergency;

2. Analysis of the provider's capabilities and potential hazards, including natural disasters, severe weather, fire, flooding, work place violence or terrorism, missing persons, severe injuries, or other emergencies that would disrupt the normal course of service delivery;

3. Written emergency management procedures outlining specific responsibilities for provision of administrative direction and management of response activities; coordination of logistics during the emergency; communications; life safety of employees, contractors, interns, volunteers, visitors and residents; property protection; community outreach; and recovery and restoration;

4. Written emergency response procedures for assessing the situation; protecting residents, employees, contractors, interns, volunteers, visitors, equipment and vital records; and restoring services. Emergency procedures shall address:

a. Communicating with employees, contractors, and community responders;

b. Warning and notification of residents;

c. Providing emergency access to secure areas and opening locked doors;

d. Conducting evacuations to emergency shelters or alternative sites and accounting for all residents;

e. Relocating residents, if necessary;

f. Notifying parents and legal guardians, as applicable and appropriate;

g. Alerting emergency personnel and sounding alarms;

h. Locating and shutting off utilities when necessary; and

i. Providing for a planned, personalized means of effective egress for residents who use wheelchairs, crutches, canes, or other mechanical devices for assistance in walking.

5. Supporting documents that would be needed in an emergency, including emergency call lists, building and site maps necessary to shut off utilities, designated escape routes, and list of major resources such as local emergency shelters; and

6. Schedule for testing the implementation of the plan and conducting emergency preparedness drills.

B. The provider shall develop emergency preparedness and response training for all employees to ensure they are prepared to implement the emergency preparedness plan in the event of an emergency. Such training shall include the employees' responsibilities for:

1. Alerting emergency personnel and sounding alarms;

2. Implementing evacuation procedures, including evacuation of residents with special needs (i.e., deaf, blind, nonambulatory);

3. Using, maintaining, and operating emergency equipment;

4. Accessing emergency information for residents including medical information; and

5. Utilizing community support services.

C. Contractors and volunteers and interns shall be oriented in their responsibilities in implementing the emergency preparedness plan in the event of an emergency.

D. The provider shall review and document the review of the emergency preparedness plan annually and make necessary revisions. Such revisions shall be communicated to employees, contractors, interns, and volunteers and incorporated into training for employees, contractors, interns, and volunteers and orientation of residents to services.

E. In the event of a disaster, fire, emergency, or any other condition that may jeopardize the health, safety, and welfare of residents, the provider shall take appropriate action to protect the health, safety, and welfare of the residents and to remedy the conditions as soon as possible.

F. In the event of a disaster, fire, emergency, or any other condition that may jeopardize the health, safety, and welfare of residents, the provider should first respond and stabilize the disaster or emergency. After the disaster or emergency is stabilized, the provider shall report the disaster or emergency in accordance with 6VAC35-41-90 (serious incident reports).

G. Floor plans showing primary and secondary means of emergency exiting shall be posted on each floor in locations where they can be seen easily by staff and residents.

H. The responsibilities of the residents in implementing the emergency procedures shall be communicated to all residents within seven days following admission or a substantive change in the procedures.

I. At least one evacuation drill (the simulation of the facility's emergency procedures) shall be conducted each month in each building occupied by residents. During any three consecutive calendar months, at least one evacuation drill shall be conducted during each shift.

J. Evacuation drills shall include, at a minimum:

1. Sounding of emergency alarms;

2. Practice in evacuating buildings;

3. Practice in alerting emergency authorities;

4. Simulated use of emergency equipment; and

5. Practice in accessing resident emergency information.

K. A record shall be maintained for each evacuation drill and shall include the following:

1. Buildings in which the drill was conducted;

2. Date and time of drill;

3. Amount of time to evacuate the buildings;

4. Specific problems encountered;

5. Staff tasks completed including:

a. Head count, and

b. Practice in notifying emergency authorities; and

6. The name of the staff members responsible for conducting and documenting the drill and preparing the record.

L. The facility shall assign one staff member who shall ensure that all requirements regarding the emergency preparedness and response plan and the evacuation drill program are met.

6VAC35-41-500. Contraband.

Written procedure shall provide for the control, detection, and disposition of contraband.

6VAC35-41-510. Searches of residents.

A. Each facility that conducts searches shall have procedures that provide that all searches shall be subject to the following:

1. Searches of residents' persons shall be conducted only for the purposes of maintaining facility security and controlling contraband while protecting the dignity of the resident.

2. Searches are conducted only by personnel who are authorized to conduct such searches.

3. The resident shall not be touched any more than is necessary to conduct the search.

B. Facilities that do not conduct searches of residents shall have a procedure prohibiting them.

C. Strip searches and visual inspections of the vagina and anal cavity areas shall only be permitted (i) if ordered by a court; (ii) if conducted by law-enforcement personnel acting in his official capacity; or (iii) if the facility obtains the approval of the regulatory authority to conduct such searches. A facility that conducts such searches shall have a procedure that provides that the searches shall be subject to the following:

1. The search shall be performed by personnel of the same sex as the resident being searched;

2. The search shall be conducted in an area that ensures privacy; and

3. Any witness to the search shall be of the same gender as the resident.

D. Manual and instrumental searches of the anal cavity or vagina shall be prohibited unless court ordered.

6VAC35-41-520. Telephone access and emergency numbers.

A. There shall be at least one continuously operable, nonpay telephone accessible to staff in each building in which residents sleep or participate in programs.

B. There shall be an emergency telephone number where a staff person may be immediately contacted 24 hours a day.

C. An emergency telephone number shall be provided to residents and the adults responsible for their care when a resident is away from the facility and not under the supervision of direct care staff or law-enforcement officials.

6VAC35-41-530. Internet access.

Facilities that allow resident access to the Internet shall have procedures governing such usage.

6VAC35-41-540. Weapons.

A. The possession, use, and storage of weapons in facilities or on the premises where residents are reasonably expected to have access are prohibited except when specifically authorized by statutes or regulations or provided in subsection B of this section. For the purpose of this section, weapons shall include (i) any pistol, revolver, or other weapon intended to propel a missile of any kind by action of an explosion; (ii) any dirk, bowie knife, except a pocket knife having a folding metal blade of less than three inches, switchblade knife, ballistic knife, machete, straight razor, slingshot, spring stick, metal knucks, or blackjack; (iii) nunchucks or other flailing instrument with two or more rigid parts that swing freely; and (iv) throwing star or oriental dart.

B. Weapons shall be permitted if they are in the possession of a licensed security personnel or law-enforcement officer while in the course of his duties.

6VAC35-41-550. Transportation.

A. It shall be the responsibility of the facility to have transportation available or to make the necessary arrangements for routine and emergency transportation.

B. There shall be written safety rules for transportation of residents and, if applicable, for the use and maintenance of vehicles.

C. The facility shall have a procedure for the verification of appropriate licensure for staff whose duties involve transporting residents.

Part V
Residents' Rights

6VAC35-41-560. Prohibited actions.

The following actions are prohibited:

1. Deprivation of drinking water or food necessary to meet a resident's daily nutritional needs, except as ordered by a licensed physician for a legitimate medical purpose and documented in the resident's record;

2. Denial of contacts and visits with the resident's attorney, a probation officer, the department, regulatory authority, a supervising agency representative, or representatives of other agencies or groups as required by applicable statutes or regulations;

3. Bans on contacts and visits with family or legal guardians, except as permitted by other applicable state regulations or by order of a court of competent jurisdiction;

4. Any action that is humiliating, degrading, or abusive;

5. Corporal punishment, which is administered through the intentional inflicting of pain or discomfort to the body through actions such as, but not limited to (i) striking or hitting with any part of the body or with an implement; (ii) pinching, pulling, or shaking; or (iii) any similar action that normally inflicts pain or discomfort;

6. Subjection to unsanitary living conditions;

7. Denial of opportunities for bathing or access to toilet facilities, except as ordered by a licensed physician for a legitimate medical purpose and documented in the resident's record;

8. Denial of health care;

9. Deprivation of appropriate services and treatment;

10. Application of aversive stimuli, except as permitted pursuant to other applicable state regulations. Aversive stimuli means any physical forces (e.g., sound, electricity, heat, cold, light, water, or noise) or substances (e.g., hot pepper, pepper sauce, or pepper spray) measurable in duration and intensity that when applied to a resident are noxious or painful to the individual, but does not include striking or hitting the individual with any part of the body or with an implement or pinching, pulling, or shaking the resident;

11. Administration of laxatives, enemas, or emetics, except as ordered by a licensed physician or poison control center for a legitimate medical purpose and documented in the resident's record;

12. Deprivation of opportunities for sleep or rest, except as ordered by a licensed physician for a legitimate medical purpose and documented in the resident's record;

13. Involuntary placement of a resident alone in a locked room or a secured area where the resident is prevented from leaving;

14. Use of mechanical restraints (e.g., handcuffs, waist chains, leg irons, disposable plastic cuffs, leather restraints, or a restraint chair);

15. Involuntary use of pharmacological restraints (administration of medication for the emergency control of an individual’s behavior when the administration is not a standard treatment for the resident’s medical or psychiatric condition);

16. Discrimination on the basis of race, religion, national origin, sex, or physical disability; and

17. Other constitutionally prohibited actions.

6VAC35-41-570. Residents' mail.

A. A resident's incoming or outgoing mail may be delayed or withheld only in accordance with this section or as permitted by other applicable regulations or by order of a court.

B. In accordance with written procedures, staff may open and inspect residents' incoming and outgoing nonlegal mail for contraband. When based on legitimate facility interests of order and security, nonlegal mail may be read, censored, or rejected. In accordance with written procedures, the resident shall be notified when incoming or outgoing letters are withheld in part or in full.

C. In the presence of the recipient and in accordance with written procedures, staff may open to inspect for contraband, but shall not read, legal mail. Legal mail shall mean any written material that is sent to or received from a designated class of correspondents, as defined in procedures, which shall include any court, legal counsel, administrators of the grievance system, or administrators of the department, facility, provider, or governing authority.

D. Staff shall not read mail addressed to parents, immediate family members, legal guardian, guardian ad litem, counsel, courts, officials of the committing authority, public official, or grievance administrators unless permission has been obtained from a court or the facility administrator has determined that there is a reasonable belief that the security of a facility is threatened. When so authorized, staff may read such mail only in the presence of a witness and in accordance with written procedures.

E. Except as otherwise provided in this section, incoming and outgoing letters shall be held for no more than 24 hours and packages for no more than 48 hours, excluding weekends and holidays.

F. Cash, stamps, and other specified items may be held for the resident.

G. Upon request, each resident shall be given postage and writing materials for all legal correspondence and at least two other letters per week.

H. Residents shall be permitted to correspond at their own expense with any person or organization provided such correspondence does not pose a threat to facility order and security and is not being used to violate or to conspire to violate the law.

I. First class letters and packages received for residents who have been transferred or released shall be forwarded.

J. Written procedure governing correspondence of residents shall be made available to all staff and residents and shall be reviewed annually and updated as needed.

6VAC35-41-580. Telephone calls.

Residents shall be permitted reasonable access to a telephone in accordance with procedures that take into account the need for facility security and order, resident behavior, and program objectives.

6VAC35-41-590. Visitation.

A. Residents shall be permitted to reasonable visiting privileges, consistent with written procedures, that take into account (i) the need for security and order, (ii) the behavior of individual residents and visitors, (iii) the importance of helping the resident maintain strong family and community ties, (iv) the welfare of the resident; and (v) whenever possible, flexible visiting hours.

B. Copies of the written visitation procedures shall be made available to the parents, when appropriate, legal guardians, the resident, and other interested persons important to the resident no later than the time of admission except that when parents or legal guardians do not participate in the admission process, visitation procedures shall be mailed, either electronically or via first class mail, to them by the close of the next business day after admission, unless a copy has already been provided to the individual.

6VAC35-41-600. Contact with attorneys, courts, and law enforcement.

A. Residents shall have uncensored, confidential contact with their legal representative in writing, as provided for in 6VAC35-41-570 (residents' mail), by telephone, or in person. For the purpose of this section a legal representative is defined as a court appointed or retained attorney or a paralegal, investigator, or other representative from that attorney's office.

B. Residents shall not be denied access to the courts.

C. Residents shall not be required to submit to questioning by law enforcement, though they may do so voluntarily.

1. Residents' consent shall be obtained prior to any contact with law enforcement.

2. No employee may coerce a resident's decision to consent to have contact with law enforcement.

3. Each facility shall have procedures for establishing a resident's consent to any such contact and for documenting the resident's decision. The procedures may provide for (i) notification of the parent or legal guardian, as appropriate and applicable, prior to the commencement of questioning; and (ii) opportunity, at the resident's request, to confer with an attorney, parent or guardian, or other person in making the decision whether to consent to questioning.

6VAC35-41-610. Personal necessities and hygiene.

A. At admission, each resident shall be provided the following:

1. An adequate supply of personal necessities for hygiene and grooming;

2. Size appropriate clothing and shoes for indoor or outdoor wear;

3. A separate bed equipped with a mattress, a pillow, blankets, bed linens, and, if needed, a waterproof mattress cover; and

4. Individual washcloths and towels.

B. At the time of issuance, all items shall be clean and in good repair.

C. Personal necessities shall be replenished as needed.

D. The washcloths, towels, and bed linens shall be cleaned or changed, at a minimum, once every seven days. Bleach or another sanitizing agent approved by the federal Environmental Protection Agency to destroy bacteria shall be used in the laundering of such linens and table linens.

E. Staff shall promote good personal hygiene of residents by monitoring and supervising hygiene practices each day and by providing instruction when needed.

6VAC35-41-620. Showers.

Residents shall have the opportunity to shower daily, except when a declaration of a state of emergency due to drought conditions has been issued by the Governor or water restrictions have been issued by the locality. Under these exceptional circumstances showers shall be restricted as determined by the facility administrator after consultation with local health officials. The alternate schedule implemented under these exceptional circumstances shall account for cases of medical necessity related to health concerns and shall be in effect only until such time as the water restrictions are lifted.

6VAC35-41-630. Clothing.

A. Provision shall be made for each resident to have an adequate supply of clean and well-fitting clothes and shoes for indoor and outdoor wear.

B. Clothes and shoes shall be similar in style to those generally worn by individuals of the same age in the community who are engaged in similar activities.

C. Residents shall have the opportunity to participate in the selection of their clothing.

D. Residents shall be allowed to take personal clothing when leaving the facility.

6VAC35-41-640. Residents' privacy.

Residents shall be provided privacy while bathing, dressing, or conducting toileting activities. This section does not apply to medical personnel performing medical procedures or to staff providing assistance to residents whose physical or mental disabilities dictate the need for assistance with these activities as justified in the resident's record.

6VAC35-41-650. Nutrition.

A. Each resident, except as provided in subsection B of this section, shall be provided a daily diet that (i) consists of at least three nutritionally balanced meals and an evening snack, (ii) includes an adequate variety and quantity of food for the age of the resident, and (iii) meets minimum nutritional requirements and the U.S. Dietary Guidelines.

B. Special diets or alternative dietary schedules, as applicable, shall be provided in the following circumstances: (i) when prescribed by a physician or (ii) when necessary to observe the established religious dietary practices of the resident. In such circumstances, the meals shall meet the minimum nutritional requirements of the U.S. Dietary Guidelines.

C. Menus of actual meals served shall be kept on file for at least six months.

D. Staff who eat in the presence of the residents shall be served the same meals as the residents unless a special diet has been prescribed by a physician for the staff or residents or the staff or residents are observing established religious dietary practices.

E. There shall not be more than 15 hours between the evening meal and breakfast the following day, except when the facility administrator approves an extension of time between meals on weekends and holidays. When an extension is granted on a weekend or holiday, there shall never be more than 17 hours between the evening meal and breakfast.

F. Providers shall assure that food is available to residents who for documented medical or religious reasons need to eat breakfast before the 15 hours have expired.

6VAC35-41-660. School enrollment and study time.

A. The facility shall make all reasonable efforts to enroll each resident of compulsory school attendance age in an appropriate educational program within five school business days after admission and in accordance with § 22.1-254 of the Code of Virginia and Regulations Governing the Reenrollment of Students Committed to the Department of Juvenile Justice (8VAC20-660), if applicable. Documentation of the enrollment and any attempt to enroll the resident shall be maintained in the resident's record.

B. Each provider shall develop and implement written procedures to ensure that each resident has adequate study time.

6VAC35-41-670. Religion.

A. Residents shall not be required or coerced to participate in or be unreasonably denied participation in religious activities.

B. The provider's procedures on religious participation shall be available to residents and any individual or agency considering placement of an individual in the facility.

6VAC35-41-680. Recreation.

A. The provider shall have a written description of its recreation program that describes activities that are consistent with the facility's total program and with the ages, developmental levels, interests, and needs of the residents that includes:

1. Opportunities for individual and group activities, both structured and unstructured;

2. Use of available community recreational resources and facilities;

3. Scheduling of activities so that they do not conflict with meals, religious services, educational programs, or other regular events; and

4. Regularly scheduled indoor and outdoor recreational activities that are structured to develop skills and attitudes.

B. The provider shall develop and implement written procedures to ensure the safety of residents participating in recreational activities that include:

1. How activities will be directed and supervised by individuals knowledgeable in the safeguards required for the activities;

2. How residents are assessed for suitability for an activity and the supervision provided; and

3. How safeguards for water related activities will be provided, including ensuring that a certified life guard supervises all swimming activities.

C. For all overnight recreational trips away from the facility, the provider shall document trip planning to include:

1. A supervision plan for the entire duration of the activity including awake and sleeping hours;

2. A plan for safekeeping and distribution of medication;

3. An overall emergency, safety, and communication plan for the activity including emergency numbers of facility administration;

4. Staff training and experience requirements for each activity;

5. Resident preparation for each activity;

6. A plan to ensure that all necessary equipment for the activity is in good repair and appropriate for the activity;

7. A trip schedule giving addresses and phone numbers of locations to be visited and how the location was chosen and evaluated;

8. A plan to evaluate residents' physical health throughout the activity and to ensure that the activity is conducted within the boundaries of the resident's capabilities, dignity, and respect for self-determination;

9. A plan to ensure that a certified life guard supervises all swimming activities in which residents participate; and

10. Documentation of any variations from trip plans and reason for the variation.

D. All overnight out-of-state or out-of-country recreational trips require written permission from each resident's legal guardian. Documentation of the written permission shall be kept in the resident's record.

6VAC35-41-690. Residents' funds.

A. The provider shall implement written procedures for safekeeping and for recordkeeping of any money that belongs or is provided to residents, including allowances, if applicable.

B. A resident's funds, including any allowance or earnings, shall be used for the resident's benefit, for payments ordered by a court, or to pay restitution for damaged property or personal injury as determined by disciplinary procedures.

6VAC35-41-700. Fundraising.

The provider shall not use residents in its fundraising activities without the written permission of the legal guardian and the consent of residents.

Part VI
Program Operation

Article 1
Admission, Transfer, and Discharge

6VAC35-41-710. Placement pursuant to a court order.

When a resident is placed in a facility pursuant to a court order, the following requirements shall be met by maintaining a copy of a court order in the resident's case record:

1. 6VAC35-41-730 (application for admission).

2. 6VAC35-41-740 (admission procedures).

3. 6VAC35-41-750 (written placement agreement).

4. 6VAC35-41-780 (emergency admissions).

5. 6VAC35-41-810 (discharge procedures).

6VAC35-41-720. Readmission to a shelter care program.

A. When a resident is readmitted to a shelter care facility within 30 days from discharge, the following requirements shall not apply:

1. 6VAC35-41-730 (application for admission).

2. 6VAC35-41-740 (admission procedures).

B. When a resident is readmitted to a shelter care facility within 30 days from discharge, the facility shall:

1. Review and update all information on the face sheet as provided in 6VAC35-41-340 (face sheet);

2. Complete a health screening in accordance with 6VAC35-41-1200 (health screening at admission);

3. Complete required admission and orientation process as provided in 6VAC35-41-760 (admission); and

4. Update in the case record any other information regarding the resident that has changed since discharge.

6VAC35-41-730. Application for admission.

A. Except for placements pursuant to a court order or resulting from a transfer between residential facilities located in Virginia and operated by the same governing authority, all admissions shall be based on evaluation of an application for admission.

B. Providers shall develop and fully complete prior to acceptance for care an application for admission that is designed to compile information necessary to determine:

1. The educational needs of the prospective resident;

2. The mental health, emotional, and psychological needs of the prospective resident;

3. The physical health needs, including the immunization needs, of the prospective resident;

4. The protection needs of the prospective resident;

5. The suitability of the prospective resident' admission;

6. The behavior support needs of the prospective resident; and

7. Information necessary to develop a service plan and a behavior support plan.

C. Each facility shall develop and implement written procedures to assess each prospective resident as part of the application process to ensure that:

1. The needs of the prospective resident can be addressed by the facility's services;

2. The facility's staff are trained to meet the prospective resident’s needs; and

3. The admission of the prospective resident would not pose any significant risk to (i) the prospective resident or (ii) the facility's residents or staff.

6VAC35-41-740. Admission procedures.

A. Except for placements pursuant to a court order, the facility shall admit only those residents who are determined to be compatible with the services provided through the facility.

B. The facility's written criteria for admission shall include the following:

1. A description of the population to be served;

2. A description of the types of services offered;

3. Intake and admission procedures;

4. Exclusion criteria to define those behaviors or problems that the facility does not have the staff with experience or training to manage; and

5. Description of how educational services will be provided to the population being served.

6VAC35-41-750. Written placement agreement.

A. Except for placements pursuant to a court order or when a resident admits himself to a shelter care facility, each resident's record shall contain, prior to a routine admission, a completed placement agreement signed by a facility representative and the legal guardian or placing agency. Routine admission means the admittance of a resident following evaluation of an application for admission and execution of a written placement agreement.

B. The written placement agreements shall:

1. Authorize the resident's placement;

2. Address acquisition of and consent for any medical treatment needed by the resident;

3. Address the rights and responsibilities of each party involved;

4. Address financial responsibility for the placement;

5. Address visitation with the resident; and

6. Address the education plan for the resident and the responsibilities of all parties.

6VAC35-41-760. Admission.

A. Written procedure governing the admission and orientation of residents to the facility shall provide for:

1. Verification of legal authority for placement;

2. Search of the resident and the resident's possessions, including inventory and storage or disposition of property, as appropriate;

3. Health screening;

4. Notification of parents and legal guardians, as applicable and appropriate, including of (i) admission, (ii) visitation, and (iii) general information, including how the resident's parent or legal guardian may request information and register concerns and complaints with the facility;

5. Interview with resident to answer questions and obtain information;

6. Explanation to resident of program services and schedules; and

7. Assignment of resident to a housing unit or room.

B. When a resident is readmitted to a shelter care facility within 30 days from discharge, the facility shall update the information required in subsection A of this section.

6VAC35-41-770. Orientation to facility rules and disciplinary procedures.

A. During the orientation to the facility, residents shall be given written information describing facility rules, the sanctions for rule violations, and the facility's disciplinary process. These shall be explained to the resident and documented by the dated signature of resident and staff.

B. Where a language or literacy problem exists that can lead to a resident misunderstanding the facility rules and regulations, staff or a qualified person under the supervision of staff shall assist the resident.

6VAC35-41-780. Emergency admissions.

Providers accepting emergency admissions, which are the unplanned or unexpected admission of a resident in need of immediate care excluding self-admittance to a shelter care facility or a court ordered placement, shall:

1. Develop and implement written procedures governing such admissions that shall include procedures to make and document prompt efforts to obtain (i) a written placement agreement signed by the legal guardian or (ii) the order of a court;

2. Place in each resident's record the order of a court, a written request for care or documentation of an oral request for care, and justification of why the resident is to be admitted on an emergency basis; and

3. Except placements pursuant to court orders, clearly document in written assessment information gathered for the emergency admission that the individual meets the facility's criteria for admission.

6VAC35-41-790. Resident transfer between residential facilities located in Virginia and operated by the same governing authority.

A. Except for transfers pursuant to a court order, when a resident is transferred from one to another facility operated by the same provider or governing authority the sending facility shall provide the receiving facility, at the time of transfer, a written summary of (i) the resident's progress while at the facility; (ii) the justification for the transfer; (iii) the resident's current strengths and needs; and (iv) any medical needs, medications, and restrictions and, if necessary, instructions for meeting these needs.

B. Except for transfers pursuant to a court order, when a resident is transferred from one to another facility operated by the same provider or governing authority the receiving facility shall document at the time of transfer:

1. Preparation through sharing information with the resident, the family and the placing agency about the facility, the staff, the population served, activities, and criteria for admission;

2. Notification to the family, if appropriate; the resident, the placement agency, and the legal guardian; and

3. Receipt of the written summary from the sending facility required by subsection A of this section.

6VAC35-41-800. Placement of residents outside the facility.

A resident shall not be placed outside the facility prior to the facility obtaining a placing agency license from the Department of Social Services, except as permitted by statute or by order of a court of competent jurisdiction.

6VAC35-41-810. Discharge procedures.

A. The provider shall have written criteria for discharge that shall include:

1. Criteria for a resident's completing the program that are consistent with the facility's programs and services;

2. Conditions under which a resident may be discharged before completing the program; and

3. Procedures for assisting placing agencies in placing the residents should the facility cease operation.

B. The provider's criteria for discharge shall be accessible to prospective residents, legal guardians, and placing agencies.

C. Residents shall be discharged only to the legal guardian, legally authorized representative, or foster parent with the written authorization of a representative of the legal guardian. A resident over the age of 17 or who has been emancipated may assume responsibility for his own discharge.

D. As appropriate and applicable, information concerning current medications, need for continuing therapeutic interventions, educational status, and other items important to the resident's continuing care shall be provided to the legal guardian or legally authorized representative, as appropriate.

6VAC35-41-820. Discharge documentation.

A. Except for residents discharged pursuant to a court order, the case record shall contain the following:

1. Documentation that discharge planning occurred prior to the planned discharge date;

2. Documentation that discussions with the parent or legal guardian, placing agency, and resident regarding discharge planning occurred prior to the planned discharge date;

3. A written discharge plan developed prior to the planned discharge date; and

4. As soon as possible, but no later than 30 days after discharge, a comprehensive discharge summary placed in the resident's record and sent to the placing agency. The discharge summary shall review the following:

a. Services provided to the resident;

b. The resident's progress toward meeting service plan objectives;

c. The resident's continuing needs and recommendations, if any, for further services and care;

d. Reasons for discharge and names of persons to whom resident was discharged;

e. Dates of admission and discharge; and

f. Date the discharge summary was prepared and the signature of the person preparing it.

B. When a resident is discharged pursuant to a court order, the case record shall contain a copy of the court order.

Article 2
Programs and Services

6VAC35-41-830. Operational procedures.

Current operational procedures shall be accessible to all staff.

6VAC35-41-840. Structured programming.

A. Each facility shall implement a comprehensive, planned, and structured daily routine, including appropriate supervision designed to:

1. Meet the residents' physical and emotional needs;

2. Provide protection, guidance, and supervision;

3. Ensure the delivery of program services; and

4. Meet the objectives of any individual service plan.

B. Each facility shall have goals, objectives, and strategies consistent with the facility's mission and program objectives utilized when working with all residents until the residents' individualized service plans are developed. These goals, objectives, and strategies shall be provided to the residents in writing during orientation to the facility.

C. Residents shall be allowed to participate in the facility's programs, as applicable, upon admission.

6VAC35-41-850. Daily log.

A. A daily communication log shall be, in accordance with facility procedures, maintained to inform staff of significant happenings or problems experienced by residents.

B. The date and time of the entry and the identity of the individual making each entry shall be recorded.

C. If the facility records log book-type information on a computer, all entries shall post the date, time, and identity of the person making an entry. The computer shall prevent previous entries from being overwritten.

6VAC35-41-860. Individual service plan.

A. An individual service plan shall be developed and placed in the resident's record within 30 days following admission and implemented immediately thereafter. The initial individual service plan shall be distributed to the resident; the resident's family, legal guardian, or legally authorized representative; the placing agency; and appropriate facility staff.

B. Individual service plans shall describe in measurable terms the:

1. Strengths and needs of the resident;

2. Resident's current level of functioning;

3. Goals, objectives, and strategies established for the resident including a behavior support plan, if appropriate;

4. Projected family involvement;

5. Projected date for accomplishing each objective; and

6. Status of the projected discharge plan and estimated length of stay except that this requirement shall not apply to a facility that discharges only upon receipt of the order of a court of competent jurisdiction.

C. Each service plan shall include the date it was developed and the signature of the person who developed it.

D. The service plan shall be reviewed within 60 days of the development of the plan and within each 90-day period thereafter. The individual service plan shall be revised as necessary. Any changes to the plan shall be made in writing. All participants shall receive copies of the revised plan.

E. The resident and facility staff shall participate in the development of the individual service plan.

F. The (i) supervising agency and (ii) resident's parents, legal guardian, or legally authorized representative, if appropriate and applicable, shall be given the opportunity to participate in the development of the resident's individual service plan.

G. Copies of the individual service plan shall be provided to the (i) resident; (ii) parents or legal guardians, as appropriate and applicable, and (iii) the placing agency.

6VAC35-41-870. Quarterly reports.

A. Except when a resident is placed in a shelter care program, the resident's progress toward meeting his individual service plan goals shall be reviewed and a progress report shall be prepared within 60 days of the development of the plan and within each 90-day period thereafter and shall review the status of the following:

1. Resident's progress toward meeting the plan's objectives;

2. Family's involvement;

3. Continuing needs of the resident;

4. Resident's progress towards discharge; and

5. Status of discharge planning.

B. Each quarterly progress report shall include the date it was developed and the signature of the person who developed it.

C. All quarterly progress reports shall be distributed to the resident; the resident's family, legal guardian, or legally authorized representative; the placing agency; and appropriate facility staff.

6VAC35-41-880. Therapy.

Therapy, if provided, shall be provided by an individual (i) licensed as a therapist by the Department of Health Professions or (ii) who is licensure eligible and working under the supervision of a licensed therapist unless exempted from these requirements under the Code of Virginia.

6VAC35-41-890. Community relationships.

A. Opportunities shall be provided for the residents to participate in activities and to utilize resources in the community.

B. In addition to the requirements of 6VAC35-41-290 (background checks for volunteers or interns), written procedures shall govern how the facility will determine if participation in such community activities or programs would be in the residents' best interest.

C. Each facility shall have a staff community liaison who shall be responsible for facilitating cooperative relationships with neighbors, the school system, local law enforcement, local government officials, and the community at large.

D. Each provider shall develop and implement written procedures for promoting positive relationships with the neighbors that shall be approved by the department.

6VAC35-41-900. Resident visitation at the homes of staff.

Resident visitation at the homes of staff is prohibited unless written permission from the (i) resident's parent or legal guardian, as applicable and appropriate, (ii) the facility administrator, and (iii) the placing agency is obtained before the visitation occurs. The written permission shall be kept in the resident's record.

Article 3
Supervision

6VAC35-41-910. Additional assignments of direct care staff.

If direct care staff assume nondirect care responsibilities, such responsibilities shall not interfere with the staff's direct care duties.

6VAC35-41-920. Staff supervision of residents.

A. Staff shall provide 24-hour awake supervision seven days a week.

B. No member of the direct care staff shall be on duty and responsible for the direct care of residents more than six consecutive days without a rest day, except in an emergency. For the purpose of this section, a rest day shall mean a period of not less than 24 consecutive hours during which a staff person has no responsibility to perform duties related to the operation of the facility.

C. Direct care staff shall have an average of at least two rest days per week in any four-week period.

D. Direct care staff shall not be on duty more than 16 consecutive hours, except in an emergency.

E. There shall be at least one trained direct care worker on duty and actively supervising residents at all times that one or more residents are present.

F. Whenever residents are being supervised by staff there shall be at least one staff person present with a current basic certification in standard first aid and a current certificate in cardiopulmonary resuscitation issued by a recognized authority.

G. The provider shall develop and implement written procedures that address staff supervision of residents including contingency plans for resident illnesses, emergencies, off-campus activities, and resident preferences. These procedures shall be based on the:

1. Needs of the population served;

2. Types of services offered;

3. Qualifications of staff on duty; and

4. Number of residents served.

6VAC35-41-930. Staffing pattern.

A. During the hours that residents are scheduled to be awake, there shall be at least one direct care staff member awake, on duty, and responsible for supervision of every 10 residents, or portion thereof, on the premises or participating in off-campus, facility sponsored activities, except that independent living programs shall have at least one direct care staff member awake, on duty, and responsible for supervision of every 15 residents on the premises or participating in off-campus, facility sponsored activities.

B. During the hours that residents are scheduled to sleep there shall be no less than one direct care staff member on duty and responsible for supervision of every 16 residents, or portion thereof, on the premises.

C. There shall be at least one direct care staff member on duty and responsible for the supervision of residents in each building where residents are sleeping. This requirement does not apply to approved independent living programs.

D. On each floor where residents are sleeping, there shall be at least one direct care staff member awake and on duty for every 30 residents or portion thereof.

6VAC35-41-940. Outside personnel working in the facility.

A. Facility staff shall monitor all situations in which outside personnel perform any kind of work in the immediate presence of residents in the facility.

B. Adult inmates shall not work in the immediate presence of any resident and shall be monitored in a way that there shall be no direct contact between or interaction among adult inmates and residents.

Part VII
Work Programs

6VAC35-41-950. Work and employment.

A. Assignment of chores that are paid or unpaid work assignments shall be in accordance with the age, health, ability, and service plan of the resident.

B. Chores shall not interfere with school programs, study periods, meals, or sleep.

C. Work assignments or employment outside the facility, including reasonable rates of pay, shall be approved by the facility administrator with the knowledge and consent of the legal guardian.

D. In both work assignments and employment the facility administrator shall evaluate the appropriateness of the work and the fairness of the pay.

Part VIII
Independent Living Programs

6VAC35-41-960. Independent living programs.

A. Independent living programs shall be a competency based program, specifically approved by the board to provide the opportunity for the residents to develop the skills necessary to become independent decision makers, to become self-sufficient adults, and to live successfully on their own following completion of the program.

B. Independent living programs shall have a written description of the curriculum and methods used to teach living skills, which shall include finding and keeping a job, managing personal finances, household budgeting, hygiene, nutrition, and other life skills.

6VAC35-41-970. Independent living programs curriculum and assessment.

A. Each independent living program must demonstrate that a structured program using materials and curriculum approved by the board is being used to teach independent living skills. The curriculum must include information regarding each of the areas listed in subsection B of this section.

B. Within 14 days of placement the provider must complete an assessment, including strengths and needs, of the resident's life skills using an independent living assessment tool approved by the department. The assessment must cover the following areas:

1. Money management and consumer awareness;

2. Food management;

3. Personal appearance;

4. Social skills;

5. Health and sexuality;

6. Housekeeping;

7. Transportation;

8. Educational planning and career planning;

9. Job seeking skills;

10. Job maintenance skills;

11. Emergency and safety skills;

12. Knowledge of community resources;

13. Interpersonal skills and social relationships;

14. Legal skills;

15. Leisure activities; and

16. Housing.

C. The resident's individualized service plan shall include, in addition to the requirements found in 6VAC35-41-860 (individual service plan), goals, objectives, and strategies addressing each of the areas listed in subsection B of this section, as applicable.

6VAC35-41-980. Employee training in independent living programs.

Each independent living program shall develop and implement procedures to train all direct care staff within 14 days of employment on the content of the independent living curriculum, the use of the independent living materials, the application of the assessment tool, and the documentation methods used. Documentation of the training shall be kept in the employee's staff record.

6VAC35-41-990. Medication management in independent living programs.

If residents age 18 years or older are to share in the responsibility for their own medication with the provider, the independent living program shall develop and implement written procedures that include:

1. Training for the resident in self administration and recognition of side effects;

2. Method for storage and safekeeping of medication;

3. Method for obtaining approval for the resident to self administer medication from a person authorized by law to prescribe medication; and

4. Method for documenting the administration of medication.

6VAC35-41-1000. Nutrition procedure in independent living programs.

Each independent living program shall develop and implement written procedures that ensure that each resident is receiving adequate nutrition as required in 6VAC35-41-650 A, B, and C (nutrition).

Part IX
Wilderness Programs and Adventure Activities

6VAC35-41-1010. Wilderness program.

A. The provider must obtain approval by the board prior to operating a primitive camping program.

B. Any wilderness program must meet the following conditions: (i) maintain a nonpunitive environment; (ii) have an experience curricula; (iii) accept residents only nine years of age or older who cannot presently function at home, in school, or in the community.

C. Any wilderness work program or wilderness work camp program shall have a written program description covering:

1. Its intended resident population;

2. How work assignments, education, vocational training, and treatment will be interrelated;

3. The length of the program;

4. The type and duration of treatment and supervision to be provided upon release or discharge; and

5. The program's behavioral expectations, incentives, and sanctions.

6VAC35-41-1020. Wilderness programs or adventure activities.

A. All wilderness programs and providers that take residents on wilderness or adventure activities shall develop and implement procedures that include:

1. Staff training and experience requirements for each activity;

2. Resident training and experience requirements for each activity;

3. Specific staff to resident ratio and supervision plan appropriate for each activity, including sleeping arrangements and supervision during night time hours;

4. Plans to evaluate and document each participant's physical health throughout the activity;

5. Preparation and planning needed for each activity and time frames;

6. Arrangement, maintenance, and inspection of activity areas;

7. A plan to ensure that any equipment and gear that is to be used in connection with a specified wilderness or adventure activity is appropriate to the activity, certified if required, in good repair, in operable condition, and age and body size appropriate;

8. Plans to ensure that all ropes and paraphernalia used in connection with rope rock climbing, rappelling, high and low ropes courses, or other adventure activities in which ropes are used are approved annually by an appropriate certifying organization and have been inspected by staff responsible for supervising the adventure activity before engaging residents in the activity;

9. Plans to ensure that all participants are appropriately equipped, clothed, and wearing safety gear, such as a helmet, goggles, safety belt, life jacket, or a flotation device, that is appropriate to the adventure activity in which the resident is engaged;

10. Plans for food and water supplies and management of these resources;

11. Plans for the safekeeping and distribution of medication;

12. Guidelines to ensure that participation is conducted within the boundaries of the resident's capabilities, dignity, and respect for self-determination;

13. Overall emergency, safety, and communication plans for each activity including rescue procedures, frequency of drills, resident accountability, prompt evacuation, and notification of outside emergency services; and

14. Review of trip plans by the trip coordinator.

B. Direct care workers hired by wilderness campsite programs and providers that take residents on wilderness or adventure activities shall be trained in a wilderness first aid course.

6VAC35-41-1030. Initial physical for wilderness programs or adventure activities.

Initial physical forms used by wilderness campsite programs and providers that take residents on wilderness or adventure activities shall include:

1. A statement notifying the doctor of the types of activities the resident will be participating in; and

2. A statement signed by the doctor stating the individual's health does not prevent him from participating in the described activities.

6VAC35-41-1040. Physical environment of wilderness programs or adventure activities.

A. Each resident shall have adequate personal storage area.

B. Fire extinguishers of a 2A 10BC rating shall be maintained so that it is never necessary to travel more than 75 feet to a fire extinguisher from combustion-type heating devices, campfires, or other source of combustion.

C. Artificial lighting shall be provided in a safe manner.

D. All areas of the campsite shall be lighted for safety when occupied by residents.

E. A telephone or other means of communication is required at each area where residents sleep or participate in programs.

F. First aid kits used by wilderness campsite programs and providers that take residents on adventure activities shall be activity appropriate and shall be accessible at all times.

6VAC35-41-1050. Sleeping areas of wilderness programs or adventure activities.

A. In lieu of or in addition to dormitories, cabins, or barracks for housing residents, primitive campsites may be used.

B. Sleeping areas shall be protected by screening or other means to prevent admittance of flies and mosquitoes.

C. A separate bed, bunk, or cot shall be made available for each person.

D. A mattress cover shall be provided for each mattress.

E. Bedding shall be clean, dry, sanitary, and in good repair.

F. Bedding shall be adequate to ensure protection and comfort in cold weather.

G. Sleeping bags, if used, shall be fiberfill and rated for 0°F.

H. Linens shall be changed as often as required for cleanliness and sanitation but not less frequently than once a week.

I. Staff of the same sex may share a sleeping area with the residents.

6VAC35-41-1060. Personal necessities in wilderness programs or adventure activities.

A. Each resident shall be provided with an adequate supply of clean clothing that is suitable for outdoor living and is appropriate to the geographic location and season.

B. Sturdy, water resistant, outdoor footwear shall be provided for each resident.

6VAC35-41-1070. Trip or activity coordination for wilderness programs or adventure activities.

A. All wilderness programs and facilities that take residents on wilderness or adventure activities must designate one staff person to be the trip coordinator who will be responsible for all facility wilderness or adventure trips.

1. This person must have experience in and knowledge regarding wilderness activities and be trained in wilderness first aid. The individual must also have at least one year experience at the facility and be familiar with the facility procedures, staff, and residents.

2. Documentation regarding this knowledge and experience shall be found in the individual's staff record.

3. The trip coordinator will review all trip plans and procedures and will ensure that staff and residents meet the requirements as outlined in the facility's procedure regarding each wilderness or adventure activity to take place during the trip.

4. The trip coordinator will review all trip plans and procedures and will ensure that staff and residents meet the requirements as outlined in the facility's procedure regarding each wilderness or adventure activity to take place during the trip.

B. The trip coordinator shall conduct a post trip debriefing within 72 hours of the group's return to base to evaluate individual and group goals as well as the trip as a whole.

C. The trip coordinator will be responsible for writing a summary of the debriefing session and shall be responsible for ensuring that procedures are updated to reflect improvements needed.

D. A trip folder will be developed for each wilderness or adventure activity conducted away from the facility and shall include:

1. Medical release forms including pertinent medical information on the trip participants;

2. Phone numbers for administrative staff and emergency personnel;

3. Daily trip logs;

4. Incident reports;

5. Swimming proficiency list if trip is near water;

6. Daily logs;

7. Maps of area covered by the trip; and

8. Daily plans.

E. The provider shall ensure that before engaging in any aquatic activity, each resident shall be classified by the trip coordinator or his designee according to swimming ability in one of two classifications: swimmer and nonswimmer. This shall be documented in the resident's record and in the trip folder.

F. The provider shall ensure that lifesaving equipment is provided for all aquatic activities and is placed so that it is immediately available in case of an emergency. At a minimum, the equipment shall include:

1. A whistle or other audible signal device; and

2. A lifesaving throwing device.

Part X
Family Oriented Group Homes

6VAC35-41-1080. Requirements of family oriented group home systems.

Family oriented group home systems shall have written procedures for:

1. Setting the number of residents to be housed in each home and room of the home and prohibiting individuals less than 18 years of age and individuals older than 17 years of age from sharing sleeping rooms without specific approval from the facility administrator;

2. Providing supervision of and guidance for the family oriented group home parents and relief staff;

3. Admitting and orienting residents;

4. Preparing a treatment plan for each resident within 30 days of admission or 72 hours in the case of a shelter care facility, and reviewing the plan quarterly;

5. Providing appropriate programs and services from intake through release;

6. Providing residents with spending money;

7. Managing resident records and releasing information;

8. Providing medical and dental care to residents;

9. Notifying parents and guardians, as appropriate and applicable, the placing agency, and the department of any serious incident as specified in written procedures;

10. Making a program supervisor or designated staff person available to residents and house parents 24 hours a day; and

11. Ensuring the secure control of any firearms and ammunition in the home.

6VAC35-41-1090. Examination by physician.

Each resident admitted to a family oriented group home shall have a physical examination including tuberculosis screening within 30 days of admission unless the resident was examined within six months prior to admission to the program.

6VAC35-41-1100. Requirements of family group homes.

Each family oriented group home shall have:

1. A fire extinguisher, inspected annually;

2. Smoke alarm devices in working condition;

3. Alternative methods of escape from second story;

4. Modern sanitation facilities;

5. Freedom from physical hazards;

6. A written emergency plan that is communicated to all new residents at orientation;

7. An up-to-date listing of medical and other emergency resources in the community;

8. A separate bed for each resident, with clean sheets and linens weekly;

9. A bedroom that is well illuminated and ventilated; is in reasonably good repair; is not a hallway, unfinished basement or attic; and provides conditions for privacy;

10. A place to store residents' clothing and personal items;

11. Sanitary toilet and bath facilities that are adequate for the number of residents;

12. A safe and clean place for indoor and outdoor recreation;

13. Adequate furniture;

14. Adequate laundry facilities or laundry services;

15. A clean and pleasant dining area;

16. Adequate and nutritionally balanced meals; and

17. Daily provision of clean clothing and articles necessary for maintaining proper personal hygiene.

6VAC35-41-1110. Other applicable regulations.

Each family oriented group home shall also be subject to and comply with the requirements of the following provisions of this chapter:

1. 6VAC35-41-180 (employee and volunteer background checks);

2. 6VAC35-41-190 (required initial orientation);

3. 6VAC35-41-200 (required initial training); and

4. 6VAC35-41-210 (required retraining).

Part XI
Respite Care

6VAC35-41-1120. Definition of respite care.

Respite care facility shall mean a facility that is specifically approved to provide short-term, periodic residential care to residents accepted into its program in order to give the parents or legal guardians temporary relief from responsibility for their direct care.

6VAC35-41-1130. Admission and discharge from respite care.

A. Acceptance of an individual as eligible for respite care by a respite care facility is considered admission to the facility. Each individual period of respite care is not considered a separate admission.

B. A respite care facility shall discharge a resident when the legal guardian no longer intends to use the facility's services.

6VAC35-41-1140. Updating health records in respite care.

Respite care facilities shall update the information required by 6VAC35-41-1170 B (health care procedures) at the time of each stay at the facility.

Part XII
Health Care Services

6VAC35-41-1150. Definitions applicable to health care services.

"Health authority" means the individual, government authority, or health care contractor responsible for organizing, planning, and monitoring the timely provision of appropriate health care services, including arrangements for all levels of health care and the ensuring of quality and accessibility of all health services, consistent with applicable statutes and regulations, prevailing community standards, and medical ethics.

"Health care record" means the complete record of medical screening and examination information and ongoing records of medical and ancillary service delivery including, but not limited to, all findings, diagnoses, treatments, dispositions, prescriptions, and their administration.

"Health care services" means those actions, preventative and therapeutic, taken for the physical and mental well-being of a resident. Health care services include medical, dental, orthodontic, mental health, family planning, obstetrical, gynecological, health education, and other ancillary services.

"Health trained personnel" means an individual who is trained by a licensed health care provider to perform specific duties such as administering heath care screenings, reviewing screening forms for necessary follow-up care, preparing residents and records for sick call, and assisting in the implementation of certain medical orders.

6VAC35-41-1160. Provision of health care services.

Treatment by nursing personnel shall be performed pursuant to the laws and regulations governing the practice of nursing within the Commonwealth. Other health-trained personnel shall provide care within their level of training and certification.

6VAC35-41-1170. Health care procedures.

A. The provider shall have and implement written procedures for promptly:

1. Arranging for the provision of medical and dental services for health problems identified at admission;

2. Arranging for the provision of routine ongoing and follow-up medical and dental services after admission;

3. Arranging for emergency medical and mental health care services, as appropriate and applicable, for each resident as provided by statute or by the agreement with the resident's legal guardian;

4. Arranging for emergency medical and mental health care services, as appropriate and applicable, for any resident experiencing or showing signs of suicidal or homicidal thoughts, symptoms of mood or thought disorders, or other mental health problems; and

5. Ensuring that the required information in subsection B of this section is accessible and up to date.

B. The following written information concerning each resident shall be readily accessible to staff who may have to respond to a medical or dental emergency:

1. Name, address, and telephone number of the physician and dentist to be notified;

2. Name, address, and telephone number of a relative or other person to be notified;

3. Medical insurance company name and policy number or Medicaid number;

4. Information concerning:

a. Use of medication;

b. All allergies, including medication allergies;

c. Substance abuse and use;

d. Significant past and present medical problems; and

5. Written permission for emergency medical care, dental care, and obtaining immunizations or a procedure and contacts for obtaining consent.

C. Facilities approved to provide respite care shall update the information required by subsection B of this section at the time of each stay at the facility.

6VAC35-41-1180. Health-trained personnel.

A. Health-trained personnel shall provide care as appropriate to their level of training and certification and shall not administer health care services for which they are not qualified or specifically trained.

B. The facility shall retain documentation of the training received by health-trained personnel necessary to perform any designated health care services. Documentation of applicable, current licensure or certification shall constitute compliance with this section.

6VAC35-41-1190. Consent to and refusal of health care services.

A. The knowing and voluntary agreement, without undue inducement or any element of force, fraud, deceit, duress, or other form of constraint or coercion, of a person who is capable of exercising free choice (informed consent) to health care shall be obtained from the resident, parent, guardian, or legal custodian as required by law.

B. The resident, parent, guardian, or legal custodian, as applicable, shall be advised by an appropriately trained medical professional of (i) the material facts regarding the nature, consequences, and risks of the proposed treatment, examination, or procedure and (ii) the alternatives to it.

C. Residents may refuse in writing medical treatment and care. This subsection does not apply to medication refusals that are governed by 6VAC35-41-1280 (medication).

D. When health care is rendered against the resident's will, it shall be in accordance with applicable laws and regulations.

6VAC35-41-1200. Health screening at admission.

The facility shall require that:

1. To prevent newly arrived residents who pose a health or safety threat to themselves or others from being admitted to the general population, all residents shall immediately upon admission undergo a preliminary health screening consisting of a structured interview and observation by health care personnel or health-trained staff, using a health screening form that has been approved by the facility's health authority. As necessary to maintain confidentiality, all or a portion of the interview shall be conducted with the resident without the presence of the parent or guardian.

2. Residents admitted to the facility who pose a health or safety threat to themselves or others are not admitted to the facility's general population but provision shall be made for them to receive comparable services.

3. Immediate health care is provided to residents who need it.

6VAC35-41-1210. Tuberculosis screening.

A. Within seven days of placement each resident shall have had a screening assessment for tuberculosis. The screening assessment can be no older than 30 days.

B. A screening assessment for tuberculosis shall be completed annually on each resident.

C. The facility's screening practices shall comply with guidelines and recommendations of (Screening for TB Infection and Disease, Policy TB 99-001) the Virginia Department of Health, Division of Tuberculosis Prevention and Control for the detection, diagnosis, prophylaxis, and treatment of pulmonary tuberculosis.

6VAC35-41-1220. Medical examinations and treatment.

A. Except for residents placed in a shelter care facility, each resident accepted for care shall have a physical examination by or under the direction of a licensed physician no earlier than 90 days prior to admission to the facility or no later than seven days following admission, except (i) the report of an examination within the preceding 12 months shall be acceptable if a resident transfers from one facility licensed or certified by a state agency to another and (ii) a physical examination shall be conducted within 30 days following an emergency admission if a report of physical examination is not available.

B. Each resident shall have an annual physical examination by or under the direction of a licensed physician and an annual dental examination by a licensed dentist.

6VAC35-41-1230. Infectious or communicable diseases.

A. A resident with a communicable disease shall not be admitted unless a licensed physician certifies that:

1. The facility is capable of providing care to the resident without jeopardizing residents and staff; and

2. The facility is aware of the required treatment for the resident and the procedures to protect residents and staff.

The requirements of this subsection shall not apply to shelter care facilities.

B. The facility shall implement written procedures approved by a medical professional that:

1. Address staff (i) interactions with residents with infectious, communicable, or contagious medical conditions; and (ii) use of standard precautions;

2. Require staff training in standard precautions, initially and annually thereafter; and

3. Require staff to follow procedures for dealing with residents who have infectious or communicable diseases.

6VAC35-41-1240. Suicide prevention.

Written procedure shall provide (i) for a suicide prevention and intervention program, developed in consultation with a qualified medical or mental health professional, and (ii) for all direct care staff to be trained in the implementation of the program.

6VAC35-41-1250. Residents' health records.

A. Each resident's health record shall include written documentation of (i) the initial physical examination, (ii) an annual physical examination by or under the direction of a licensed physician including any recommendation for follow-up care, and (iii) documentation of the provision of follow-up medical care recommended by the physician or as indicated by the needs of the resident.

B. The resident's active health records (i) shall be kept confidential and inaccessible from unauthorized persons, (ii) shall be readily accessible in case of emergency, and (iii) shall be made available to authorized staff consistent with applicable state and federal statutes and regulations.

C. Each physical examination report shall include:

1. Information necessary to determine the health and immunization needs of the resident, including:

a. Immunizations administered at the time of the exam;

b. Vision exam;

c. Hearing exam;

d. General physical condition including documentation of apparent freedom from communicable disease including tuberculosis;

e. Allergies, chronic conditions, and handicaps, if any;

f. Nutritional requirements including special diets, if any;

g. Restrictions on physical activities, if any; and

h. Recommendations for further treatment, immunizations, and other examinations indicated;

2. Date of the physical examination; and

3. Signature of a licensed physician, the physician's designee, or an official of a local health department.

D. Each resident's health record shall include written documentation of (i) an annual examination by a licensed dentist and (ii) documentation of follow-up dental care recommended by the dentist or as indicated by the needs of the resident. This requirement does not apply to shelter care facilities and respite care facilities.

E. Each resident's health record shall include notations of health and dental complaints and injuries and shall summarize symptoms and treatment given.

F. Each resident's health record shall include or document the facility's efforts to obtain treatment summaries of ongoing psychiatric or other mental health treatment and reports, if applicable.

6VAC35-41-1260. First aid kits.

A. A well stocked first aid kit shall be maintained and readily accessible for dealing with minor injuries and medical emergencies.

B. First aid kits should be monitored in accordance with established facility procedures to ensure kits are maintained, stocked, and ready for use.

6VAC35-41-1270. Hospitalization and other outside medical treatment of residents.

A. When a resident needs hospital care or other medical treatment outside the facility:

1. The resident shall be transported safely; and

2. A parent or legal guardian, a staff member, or a law-enforcement officer, as appropriate, shall accompany the resident and stay at least during admission.

B. If a parent or legal guardian does not accompany the resident to the hospital or other medical treatment outside the facility, the parent or legal guardian shall be informed that the resident was taken outside the facility for medical attention as soon as is practicable.

6VAC35-41-1280. Medication.

A. All medication shall be properly labeled consistent with the requirements of the Virginia Drug Control Act (§ 54.1-3400 et seq. of the Code of Virginia). Medication prescribed for individual use shall be so labeled.

B. All medication shall be securely locked, unless otherwise ordered by a physician on an individual basis for keep-on-person or equivalent use.

C. All staff responsible for medication administration who do not hold a license issued by the Virginia Department of Health Professions authorizing the administration of medications shall have successfully completed a medication training program approved by the Board of Nursing or be licensed by the Commonwealth of Virginia to administer medications before they can administer medication. All staff who administer medication shall complete an annual refresher medication training.

D. Staff authorized to administer medication shall be informed of any known side effects of the medication and the symptoms of the effects.

E. A program of medication, including procedures regarding the use of over-the-counter medication pursuant to written or verbal orders signed by personnel authorized by law to give such orders, shall be initiated for a resident only when prescribed in writing by a person authorized by law to prescribe medication.

F. All medications shall be administered in accordance with the physician's or other prescriber's instructions and consistent with the standards of practice outlined in the current medication aide training curriculum approved by the Board of Nursing.

G. A medication administration record shall be maintained of all medicines received by each resident and shall include:

1. Date the medication was prescribed or most recently refilled;

2. Drug name;

3. Schedule for administration;

4. Strength;

5. Route;

6. Identity of the individual who administered the medication; and

7. Dates the medication was discontinued or changed.

H. In the event of a medication incident or an adverse drug reaction, first aid shall be administered if indicated. Staff shall promptly contact a poison control center, pharmacist, nurse, or physician and shall take actions as directed. If the situation is not addressed in standing orders, the attending physician shall be notified as soon as possible and the actions taken by staff shall be documented. For the purpose of this section a medical incident means an error made in administering a medication to a resident including the following: (i) a resident is given incorrect medication; (ii) medication is administered to an incorrect resident; (iii) an incorrect dosage is administered; (iv) medication is administered at a wrong time or not at all; and (v) the medication is administered through an improper method. A medication error does not include a resident's refusal of appropriately offered medication.

I. Written procedures shall provide for (i) the documentation of medication incidents, (ii) the review of medication incidents and reactions and making any necessary improvements, (iii) the storage of controlled substances, and (iv) the distribution of medication off campus. The procedures must be approved by a health care professional. Documentation of this approval shall be retained.

J. Medication refusals shall be documented including action taken by staff. The facility shall follow procedures for managing such refusals that shall address:

1. Manner by which medication refusals are documented, and

2. Physician follow-up, as appropriate.

K. Disposal and storage of unused, expired, and discontinued medications shall be in accordance with applicable laws and regulations.

L. The telephone number of a regional poison control center and other emergency numbers shall be posted on or next to each nonpay telephone that has access to an outside line in each building in which residents sleep or participate in programs.

M. Syringes and other medical implements used for injecting or cutting skin shall be locked and inventoried in accordance with facility procedures.

Part XIII
Behavior Support and Management

6VAC35-41-1290. Behavior management.

A. Each facility shall implement a behavior management program. Behavior management shall mean those principles and methods employed to help a resident achieve positive behavior and to address and correct a resident's inappropriate behavior in a constructive and safe manner in accordance with written procedures governing program expectations, treatment goals, and residents' and employees' safety and security.

B. Written procedures governing this program shall provide the following:

1. A listing of the rules of conduct and behavioral expectations for the resident;

2. Orientation of residents as provided in 6VAC35-41-770 (orientation to facility rules and disciplinary procedures);

3. The definition and listing of a system of privileges and sanctions that is used and available for use. Sanctions shall be listed in the order of their relative degree of restrictiveness and shall contain alternative to room confinement as a sanction.

4. Specification of the staff members who may authorize the use of each privilege and sanction;

5. Documentation requirements when privileges are applied and sanctions are imposed; and

6. Specification of the processes for implementing such procedures.

C. Written information concerning the procedures of the provider's behavior management program shall be provided prior to admission to prospective residents, legal guardians, and placing agencies. For court-ordered and emergency admissions, this information shall be provided to:

1. Residents within 12 hours following admission;

2. Placing agencies within 72 hours following the resident's admission; and

3. Legal guardians within 72 hours following the resident's admission.

D. When substantive revisions are made to procedures governing management of resident behavior, written information concerning the revisions shall be provided to:

1. Residents prior to implementation; and

2. Legal guardians and placing agencies prior to implementation.

E. The facility administrator or designee shall review the behavior management program and procedures at least annually to determine appropriateness for the population served.

F. Any time residents are present, staff must be present who have completed all trainings in behavior management.

6VAC35-41-1300. Behavior support.

A. Each facility shall have a procedure regarding behavior support plans for use with residents who need supports in addition to those provided in the facility's behavior management program that addresses the circumstances under which such plans shall be utilized. Such plans shall support the resident's self-management of his own behavior and shall include:

1. Identification of positive and problem behavior;

2. Identification of triggers for behaviors;

3. Identification of successful intervention strategies for problem behavior;

4. Techniques for managing anger and anxiety; and

5. Identification of interventions that may escalate inappropriate behaviors.

B. Individualized behavior support plans shall be developed in consultation with the:

1. Resident;

2. Legal guardian, if applicable;

3. Resident's parents, if applicable;

4. Program director;

5. Placing agency staff; and

6. Other applicable individuals.

C. Prior to working alone with an assigned resident, each staff member shall review and be prepared to implement the resident's behavior support plan.

6VAC35-41-1310. Timeout.

A. A facility may use a systematic behavior management technique program component designed to reduce or eliminate inappropriate or problematic behavior by having a staff require a resident to move to a specific location that is away from a source of reinforcement for a specific period of time or until the problem behavior has subsided (time-out) under the following conditions:

1. The provider shall develop and implement written procedures governing the conditions under which a resident may be placed in timeout and the maximum period of timeout.

2. The conditions and maximum period of timeout shall be based on the resident's chronological and developmental level.

3. The area in which a resident is placed shall not be locked nor the door secured in a manner that prevents the resident from opening it.

4. A resident in timeout shall be able to communicate with staff.

5. Staff shall check on the resident in the timeout area at least every 15 minutes and more often depending on the nature of the resident's disability, condition, and behavior.

B. Use of timeout and staff checks on the residents shall be documented.

6VAC35-41-1320. Physical restraint.

A. Physical restraint shall be used as a last resort only after less restrictive interventions have failed or to control residents whose behavior poses a risk to the safety of the resident, others, or the public.

1. Staff shall use the least force deemed reasonable to be necessary to eliminate the risk or to maintain security and order and shall never use physical restraint as punishment or with the intent to inflict injury.

2. Staff may physically restrain a resident only after less restrictive behavior interventions have failed or when failure to restrain would result in harm to the resident or others.

3. Physical restraint may be implemented, monitored, and discontinued only by staff who have been trained in the proper and safe use of restraint.

4. For the purpose of this section, physical restraint shall mean the application of behavior intervention techniques involving a physical intervention to prevent an individual from moving all or part of that individual's body.

B. Written procedures governing use of physical restraint shall include:

1. The staff position who will write the report and timeframe;

2. The staff position who will review the report and timeframe; and

3. Methods to be followed should physical restraint, less intrusive interventions, or measures permitted by other applicable state regulations prove unsuccessful in calming and moderating the resident's behavior.

C. All physical restraints shall be reviewed and evaluated to plan for continued staff development for performance improvement.

D. Each application of physical restraint shall be fully documented in the resident's record including:

1. Date and time of the incident;

2. Staff involved;

3. Justification for the restraint;

4. Less restrictive behavior interventions that were unsuccessfully attempted prior to using physical restraint;

5. Duration;

6. Description of method or methods of physical restraint techniques used;

7. Signature of the person completing the report and date; and

8. Reviewer's signature and date.

6VAC35-41-1330. Chemical agents.

Staff are prohibited from using pepper spray and other chemical agents to manage resident behavior.

NOTICE: The forms used in administering the above regulation are not being published; however, the name of each form is listed below. The forms are available for public inspection by contacting the agency contact for this regulation, or at the office of the Registrar of Regulations, General Assembly Building, 2nd Floor, Richmond, Virginia.

FORMS (6VAC35-41)

Health Services Intake Medical Screening, HS 1/10.

TB Risk Assessment Form, TB 512-Form (rev. 2/05), Virginia Department of Health Division of TB Control.

Instructions for the TB Risk Assessment Form, TB 512-Instructions (rev. 2/05), Virginia Department of Health Division of TB Control.

DOCUMENTS INCORPORATED BY REFERENCE (6VAC35-41)

Screening for TB Infection and Disease, Policy TB 99-001 (www.vdh.virginia.gov/epidemiology/DiseasePrevention/Programs/Tuberculosis/Policies/screening.htm), Virginia Department of Health.

A Resource Guide for Medication Management for Persons Authorized Under the Drug Control Act, Developed by the Virginia Department of Social Services, Approved as Revised by the Board of Nursing, July 1996, September 2000.

VA.R. Doc. No. R09-1817; Filed January 11, 2010, 2:27 p.m.