12VAC35-45 Regulations for Providers of Mental Health, Mental Retardation, Substance Abuse, and Brain Injury Residential Services for Children
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REGULATIONS
Vol. 25 Iss. 21 - June 22, 2009TITLE 12. HEALTHSTATE MENTAL HEALTH, MENTAL RETARDATION AND SUBSTANCE ABUSE SERVICES BOARDChapter 45Fast-Track RegulationTitles of Regulations: 12VAC35-45. Regulations for Providers of Mental Health, Mental Retardation, Substance Abuse, and Brain Injury Residential Services for Children (repealing 12VAC35-45-10 through 12VAC35-45-210).
12VAC35-46. Regulations for Children's Residential Facilities (adding 12VAC35-46-10 through 12VAC35-46-1140).
Statutory Authority: §§ 37.2-203 and 37.2-408 of the Code of Virginia.
Public Hearing Information: No public hearings are scheduled.
Public Comments: Public comments may be submitted until 5 p.m. on July 22, 2009.
Effective Date: August 6, 2009.
Agency Contact: Leslie Anderson, Director of the Office of Licensing, Department of Mental Health, Mental Retardation and Substance Abuse Services, P.O. Box 1797, 1220 Bank Street, Richmond, VA 23218-1797, telephone (804) 371-6885, FAX (804) 692-0066, or email leslie.anderson@co.dmhmrsas.virginia.gov.
Basis: The State Mental Health, Mental Retardation and Substance Abuse Services Board (effective July 1, 2009, name changes to Board of Behavioral Health and Developmental Services) has the authority to adopt these regulations under § 37.2-408 of the Code of Virginia. This authority is mandatory. Chapter 873 of the 2008 Acts of Assembly eliminated the interdepartmental regulation of children's residential facilities and requires DMHMRSAS, the Department of Social Services, and Department of Juvenile Justice to regulate and license the children's facilities for which they are now the primary licensing agency. This legislation also requires the aformentioned agencies to promulgate regulations to implement the provisions of the legislation no later than October 31, 2009.
Purpose: The 2008 Virginia General Assembly passed legislation eliminating the interdepartmental regulatory process and mandated new regulations be promulgated by all the involved agencies, including DMHMRSAS, to implement this change by October 31, 2009. This regulatory action is essential to ensure the continuity of regulatory oversight and the protection of the health, safety, and welfare of children with mental illness, mental retardation, substance abuse, or brain injury who receive services in facilities subject to licensing under the interdepartmental or core regulations, 22VAC42-10. The replacement regulations have been developed to afford the primary regulatory authority to DMHMRSAS to implement the same licensing requirements that have governed these facilities under the interdepartmental regulations. These facilities would now have DMHMRSAS as the single licensing agency, as required by the law. The implementation of these regulations will allow DMHMRSAS and the state MHMRSAS board to comply with the essential purpose, intent, and oversight responsibilities within the timeframe imposed by the law.
Rationale for Using Fast-Track Process: The replacement regulations simply restate and consolidate the relevant parts of the current interdepartmental or core regulations and the existing mental health module into a new single set of regulations. The replacement regulations will not alter the licensing requirements for providers that are governed by the current regulations or impact the existing licensing process for these providers. Therefore, these regulations are not expected to be controversial and are qualified for consideration under the fast-track process. In addition, the regulations just went through a comprehensive revision that went into effect in December 2007. The shortened legislative deadline made it difficult to promulgate these regulations under anything but the fast-track process.
Substance: There are no new substantial provisions included in the proposed regulations. The proposed replacement regulations enable DMHMRSAS to fulfill its statutory responsibility for licensing and regulating children's residential facilities that provide mental health, mental retardation, substance abuse, and brain injury services for children. These service providers are now subject to the same regulatory provisions and oversight under the interdepartmental regulations 22VAC42-10 and the mental health module 12VAC35-45.
Issues: The primary advantage of regulatory action for the public and providers is that it will provide a single comprehensive set of regulatory and licensing requirements for children's residential facilities that provide mental health, mental retardation, substance abuse, and brain injury services. This should simplify the requirements and make them easier to understand for those individuals affected by the regulations. Moreover, this action will not impose any new requirements and facilitate the transition and orientation to the new regulations when they become effective.
The proposed regulatory action will enable DMHMRSAS and the state MHMRSAS board to comply with the requirements of Chapter 873 of the 2008 Virginia Acts of Assembly in accordance with the timeframe imposed by the law. The new regulations will consolidate all of the regulatory provisions and facilitate the inspection and oversight functions for department staff.
There are no known disadvantages associated with this regulatory action.
The Department of Planning and Budget's Economic Impact Analysis:
Summary of the Proposed Amendments to Regulation. The proposed regulations merely restate the provisions of the repealed interdepartmental regulation of children's residential facilities and move existing mental health module into a new single set of regulations.
Result of Analysis. The benefits likely exceed the costs for all proposed changes.
Estimated Economic Impact. Previously, children's residential facilities were regulated by multiple agencies under interdepartmental regulations of children's residential facilities. In addition to the interdepartmental regulations, Department of Mental Health, Mental Retardation and Substance Abuse Services (DMHMRSAS) currently has a mental health module to cover mental health specific aspects of regulating these facilities. However, Chapter 873 of the 2008 Acts of Assembly eliminated interdepartmental regulations and mandated all of the agencies involved to implement their own regulations by October 2009.
The proposed regulations merely restate the provisions of the repealed interdepartmental regulations in the Virginia Administrative Code allocated to DMHMRSAS and move the existing mental health module that apply to the same facilities into a new single set of regulations. Since there is no change in the requirements that apply to facilities, no significant economic effect is expected other than improving the clarity of the regulations and possibly avoiding some potential communication costs.
Businesses and Entities Affected. There are currently 174 providers regulated under these rules.
Localities Particularly Affected. The proposed regulations apply throughout the Commonwealth.
Projected Impact on Employment. No significant impact on employment is expected.
Effects on the Use and Value of Private Property. No significant impact on the use and value of private property is expected.
Small Businesses: Costs and Other Effects. The proposed changes do not create any costs or other affects on small businesses.
Small Businesses: Alternative Method that Minimizes Adverse Impact. The proposed changes do not create any adverse impact on small businesses.
Real Estate Development Costs. The proposed changes do not create any real estate development costs.
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 agency concurs with the economic impact analysis prepared by the Department of Planning and Budget.
Summary:
This action allows the Department of Mental Health, Mental Retardation and Substance Abuse Services (DMHMRSAS) to regulate and license the children's group homes and residential facilities for which it is now the primary licensing agency. The replacement regulations incorporate and consolidate existing applicable regulations 22VAC42-11, Standards for Interdepartmental Regulation of Children's Residential Facilities (known as the "core" regulations), and the existing "mental health module" regulations 12VAC35-45. The 2008 Virginia General Assembly eliminated the interdepartmental regulation of children's residential facilities and required DMHMRSAS, the Department of Social Services, and the Department of Juvenile Justice to license specific children's residential facilities for which they are now the primary licensing agency. This 2008 legislation requires each of the aforementioned agencies to adopt regulations to replace and restate the existing interdepartmental or core regulations.
The proposed replacement regulations consist of regulatory provisions that are now implemented by the department for facilities that provide mental health, mental retardation, substance abuse, and brain injury residential services for children. The State Mental Health, Mental Retardation and Substance Abuse Services Board adopted amended core regulations 22VAC42-11 in 2007 pursuant to the standard public process required by the Virginia Administrative Process Act. The proposed replacement regulations simply restate the relevant provisions from the existing interdepartmental regulations and consolidate them with the existing "mental health module" into a new single set of regulations.
CHAPTER 46
REGULATIONS FOR CHILDREN'S RESIDENTIAL FACILITIESPart I
General Provisions12VAC35-46-10. Definitions.
The following words and terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise.
"Allegation" means an accusation that a facility is operating without a license or receiving public funds for services it is not certified to provide.
"Annual" means within 13 months of the previous event or occurrence.
"Applicable state regulation" means any regulation that the department determines applies to the facility. The term includes, but is not necessarily limited to, regulations promulgated by the Departments of Education, Health, Housing and Community Development, or other state agencies.
"Applicant" means the person, corporation, partnership, association, or public agency that has applied for a license.
"Aversive stimuli" means the physical forces (e.g., sound, electricity, heat, cold, light, water, or noise) or substances (e.g., hot pepper sauce or pepper spray) measurable in duration and intensity that when applied to a resident are noxious or painful to the resident but in no case shall the term "aversive stimuli" include striking or hitting the individual with any part of the body or with an implement or pinching, pulling, or shaking the resident.
"Behavior support" means those principles and methods employed by a provider to help a child achieve positive behavior and to address and correct a child's inappropriate behavior in a constructive and safe manner in accordance with written policies and procedures governing program expectations, treatment goals, child and staff safety and security, and the child's individualized service plan.
"Behavior support assessment" means identification of a resident's behavior triggers, successful intervention strategies, anger and anxiety management options for calming, techniques for self-management, and specific goals that address the targeted behaviors that lead to emergency safety interventions.
"Body cavity search" means any examination of a resident's rectal or vaginal cavities, except the performance of medical procedures by medical personnel.
"Brain injury" means any injury to the brain that occurs after birth, but before age 65, that is acquired through traumatic or nontraumatic insults. Nontraumatic insults may include, but are not limited to, anoxia, hypoxia, aneurysm, toxic exposure, encephalopathy, surgical interventions, tumor, and stroke. Brain injury does not include hereditary, congenital, or degenerative brain disorders, or injuries induced by birth trauma.
"Brain Injury Waiver" means a Virginia Medicaid home and community-based waiver for persons with brain injury approved by the Centers for Medicare and Medicaid Services.
"Care" or "treatment" means a set of individually planned interventions, training, habilitation, or supports that help a resident obtain or maintain an optimal level of functioning, reduce the effects of disability or discomfort, or ameliorate symptoms, undesirable changes or conditions specific to physical, mental, behavioral, or social functioning.
"Child" means any person legally defined as a child under state law. The term includes residents and other children coming into contact with the resident or facility (e.g., visitors). When the term is used, the requirement applies to every child at the facility regardless of whether the child has been admitted to the facility for care (e.g., staff/child ratios apply to all children present even though some may not be residents).
"Child-placing agency" means any person licensed to place children in foster homes or adoptive homes or a local board of social services authorized to place children in foster homes or adoptive homes.
"Children's residential facility" or "facility" means a publicly or privately operated facility, other than a private family home, where 24-hour per day care is provided to children separated from their legal guardians and is required to be licensed or certified by the Code of Virginia except:
1. Any facility licensed by the Department of Social Services as a child-caring institution as of January 1, 1987, and that receives public funds; and
2. Acute-care private psychiatric hospitals serving children that are licensed by the Department of Behavioral Health and Developmental Services under the Rules and Regulations for the Licensing of Providers of Mental Health, Mental Retardation and Substance Abuse, the Individual and Family Developmental Disabilities Support Waiver, and Residential Brain Injury Services, 12VAC35-105.
"Commissioner" means the Commissioner of the Department of Behavioral Health and Developmental Services or his authorized agent.
"Complaint" means an accusation against a licensed facility regarding an alleged violation of regulations or law.
"Contraband" means any item prohibited by law or by the rules and regulations of the department, or any item that conflicts with the program or safety and security of the facility or individual residents.
"Corporal punishment" means punishment administered through the intentional inflicting of pain and 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; or (ii) any similar action that normally inflicts pain or discomfort.
"Counseling" means certain formal treatment interventions such as individual, family, and group modalities, that provide for support and problem solving. Such interventions take place between provider staff and resident families or groups and are aimed at enhancing appropriate psychosocial functioning or personal sense of well-being.
"Corrective action plan" means the provider's pledged corrective action in response to cited areas of noncompliance documented by the department. A corrective action plan must be completed within a specified time.
"Crisis" means any acute emotional disturbance in which a resident presents an immediate danger to self or others or is at risk of serious mental or physical health deterioration caused by acute mental distress, behavioral or situational factors, or acute substance abuse related problems.
"Crisis intervention" means those activities aimed at the rapid management of a crisis.
"Day" means calendar day unless the context clearly indicates otherwise.
"Department" means the Department of Behavioral Health and Developmental Services (DBHDS).
"DOE" means the Department of Education.
"Emergency" means a sudden, generally unexpected occurrence or set of circumstances demanding immediate action. Emergency does not include regularly scheduled time off for permanent staff or other situations that should reasonably be anticipated.
"Emergency admission" means the sudden, unplanned, unexpected admittance of a child who needs immediate care or a court-ordered placement.
"Goal" means expected results or conditions that usually involve a long period of time and that are written in behavioral terms in a statement of relatively broad scope. Goals provide guidance in establishing specific short-term objectives directed toward the attainment of the goal.
"Good character and reputation" means findings have been established and knowledgeable and objective people agree that the individual maintains business or professional, family, and community relationships that are characterized by honesty, fairness, truthfulness, and dependability, and has a history or pattern of behavior that demonstrates that the individual is suitable and able to care for, supervise, and protect children. Relatives by blood or marriage, and persons who are not knowledgeable of the individual, such as recent acquaintances, shall not be considered objective references.
"Group home" means a children's residential facility that is a community-based, homelike single dwelling, or its acceptable equivalent, other than the private home of the operator, and serves up to 12.
"Health record" means the file maintained by the provider that contains personal health information.
"Human research" means any systematic investigation including research development, testing, and evaluation, utilizing human subjects, that is designed to develop or contribute to generalized knowledge. Human research shall not include research exempt from federal research regulations pursuant to 45 CFR 46.101(b).
"Immediately" means directly without delay.
"Independent living program" means a competency-based program that is specifically approved by the department to provide the opportunity for the residents to develop the skills necessary to live successfully on their own following completion of the program.
"Individualized service plan" means a written plan of action developed and modified at intervals to meet the needs of a specific resident. It specifies measurable short and long-term goals, objectives, strategies, and time frames for reaching the goals and the individuals responsible for carrying out the plan.
"Intellectual disability" means mental retardation.
"Legal guardian" means the natural or adoptive parents or other person, agency, or institution that has legal custody of a child.
"License" means a document verifying approval to operate a children's residential facility and that indicates the status of the facility regarding compliance with applicable state regulations.
"Live-in staff" means staff who are required to be on duty for a period of 24 consecutive hours or more during each work week.
"Living unit" means the space in which a particular group of children in care of a 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 unit. Depending upon its design, a building may contain one living unit or several separate living units.
"Mechanical restraint" means the use of a mechanical device that cannot be removed by the individual to restrict the freedom of movement or functioning of a limb or a portion of an individual's body when that behavior places him or others at imminent risk.
"Medication" means prescribed and over-the-counter drugs.
"Medication administration" means the direct application of medications by injection, inhalation, or ingestion or any other means to a resident by (i) persons legally permitted to administer medications; or (ii) the resident at the direction and in the presence of persons legally permitted to administer medications.
"Medication error" means an error made in administering a medication to a resident including the following: (i) the wrong medication is given to the resident; (ii) the wrong resident is given the medication; (iii) the wrong dosage is given to a resident; (iv) medication is given to a resident at the wrong time or not at all; and (v) the proper method is not used to give the medication to the resident. A medication error does not include a resident's refusal of offered medication.
"Mental retardation" ("intellectual disability") means a disability originating before the age of 18 years characterized concurrently by (i) significantly subaverage intellectual functioning as demonstrated by performance on a standardized measure of intellectual functioning, administered in conformity with accepted professional practice, that is at least two standard deviations below the mean; and (ii) significant limitations in adaptive behavior as expressed as conceptual, social, and practical adaptive skills (§ 37.2-100 of the Code of Virginia). According to the American Association of Intellectual Disabilities (AAID) definition, these impairments should be assessed in the context of the individual's environment, considering cultural and linguistic diversity as well as differences in communication, and sensory motor and behavioral factors. Within an individual limitations often coexist with strengths. The purpose of describing limitations is to develop a profile of needed supports. With personalized supports over a sustained period, the functioning of an individual will improve. In some organizations the term "intellectual disability" is used instead of "mental retardation."
"Neurobehavioral services" means the assessment, evaluation, and treatment of cognitive, perceptual, behavioral, and other impairments caused by brain injury, that affect an individual's ability to function successfully in the community.
"Objective" means expected short-term results or conditions that must be met in order to attain a goal. Objectives are stated in measurable, behavioral terms and have a specified time for achievement.
"On-duty" means that period of time during which a staff person is responsible for the supervision of one or more children.
"On-site" means services that are delivered by the provider and are an integrated part of the overall service delivery system.
"Parent" means a natural or adoptive parent or surrogate parent appointed pursuant to DOE's regulations governing special education programs for students with disabilities." "Parent" means either parent unless the facility has been provided documentation that there is a legally binding instrument, a state law, or court order governing such matters as divorce, separation, or custody, that provides to the contrary.
"Pat down" means a thorough external body search of a clothed resident.
"Personal health information" means oral, written, or otherwise recorded information that is created or received by an entity relating to either an individual's physical or mental health or the provision of or payment for health care to an individual.
"Placement" means an activity by any person that provides assistance to a parent or legal guardian in locating and effecting the movement of a child to a foster home, adoptive home, or children's residential facility.
"Premises" means the tracts of land on which any part of a residential facility for children is located and any buildings on such tracts of land.
"Provider" means any person, entity, or organization, excluding an agency of the federal government by whatever name or designation, that delivers (i) residential services to children with mental illness, mental retardation (intellectual disability), or substance abuse; or (ii) residential services for persons with brain injury.
"Record" means up-to-date written or automated information relating to one resident. This information includes social data, agreements, all correspondence relating to the care of the resident, service plans with periodic revisions, aftercare plans and discharge summary, and any other data related to the resident.
"Resident" means a person admitted to a children's residential facility for supervision, care, training, or treatment on a 24-hour per day basis.
"Residential treatment program" means 24-hour, supervised, medically necessary, out-of-home programs designed to provide necessary support and address mental health, behavioral, substance abuse, cognitive, or training needs of a child or adolescent in order to prevent or minimize the need for more intensive inpatient treatment. Services include, but shall not be limited to, assessment and evaluation, medical treatment (including medication), individual and group counseling, neurobehavioral services, and family therapy necessary to treat the child. The service provides active treatment or training beginning at admission related to the resident's principle diagnosis and admitting symptoms. These services do not include interventions and activities designed only to meet the supportive nonmental health special needs including, but not limited to, personal care, habilitation, or academic educational needs of the resident.
"Respite care facility" means a facility that is specifically approved to provide short-term, periodic residential care to children accepted into its program in order to give the parents or legal guardians temporary relief from responsibility for their direct care.
"Rest day" means a period of not less than 24 consecutive hours during which a staff person has no responsibility to perform duties related to the facility.
"Restraint" means the use of a mechanical device, medication, physical intervention, or hands-on hold to prevent an individual from moving his body to engage in a behavior that places him or others at imminent risk. There are three kinds of restraints:
1. Mechanical restraint means the use of a mechanical device that cannot be removed by the individual to restrict the freedom of movement or functioning of a limb or a portion of an individual's body when that behavior places him or others at imminent risk.
2. Pharmacological restraint means the use of a medication that is administered involuntarily for the emergency control of an individual's behavior when that individual's behavior places him or others at imminent risk and the administered medication is not a standard treatment for the individual's medical or psychiatric condition.
3. Physical restraint, also referred to as manual hold, means the use of a physical intervention or hands-on hold to prevent an individual from moving his body when that individual's behavior places him or others at imminent risk.
"Routine admission" means the admittance of a child following evaluation of an application for admission and execution of a written placement agreement.
"Rules of conduct" means a listing of a facility's rules or regulations that is maintained to inform residents and others about behaviors that are not permitted and the consequences applied when the behaviors occur.
"Sanitizing agent" means any substance approved by the Environmental Protection Agency to destroy bacteria.
"Seclusion" means the involuntary placement of an individual alone in an area secured by a door that is locked or held shut by a staff person by physically blocking the door, or by any other physical or verbal means so that the individual cannot leave it.
"Self-admission" means the admittance of a child who seeks admission to a temporary care facility as permitted by Virginia statutory law without completing the requirements for "routine admission."
"Serious incident" means:
1. Any accident or injury requiring medical attention by a physician;
2. Any illness that requires hospitalization;
3. Any overnight absence from the facility without permission;
4. Any runaway; or
5. Any event that affects, or potentially may affect, the health, safety or welfare of any resident being served by the provider.
"Serious injury" means any injury resulting in bodily hurt, damage, harm, or loss that requires medical attention by a licensed physician.
"Service" or "services" means planned individualized interventions intended to reduce or ameliorate mental illness, mental retardation (intellectual disability), or substance abuse through care, treatment, training, habilitation, or other supports that are delivered by a provider to individuals with mental illness, mental retardation (intellectual disability), or substance abuse. Services include residential services, including those for persons with brain injury.
"Severe weather" means extreme environment or climate conditions that pose a threat to the health, safety, or welfare of residents.
"Social skills training" means activities aimed at developing and maintaining interpersonal skills.
"Strategies" means a series of steps and methods used to meet goals and objectives.
"Strip search" means a visual inspection of the body of a resident when that resident's outer clothing or total clothing is removed and an inspection of the removed clothing. Strip searches are conducted for the detection of contraband.
"Structured program of care" means a comprehensive planned daily routine including appropriate supervision that meets the needs of each resident both individually and as a group.
"Student/intern" means an individual who simultaneously is affiliated with an educational institution and a residential facility. Every student/intern who is not an employee is either a volunteer or contractual service provider depending upon the relationship among the student/intern, educational institution, and facility.
"Substantial compliance" means that while there may be noncompliance with one or more regulations that represents minimal risk, compliance clearly and obviously exists with most of the regulations as a whole.
"Systemic deficiency" means violations documented by the department that demonstrate defects in the overall operation of the facility or one or more of its components.
"Target population" means individuals with a similar, specified characteristic or disability.
"Temporary contract worker" means an individual who is not a direct salaried employee of the provider but is employed by a third party and is not a consistently scheduled staff member.
"Therapy" means provision of direct diagnostic, preventive, and treatment services where functioning is threatened or affected by social and psychological stress or health impairment.
"Time out" means the involuntary removal of a resident by a staff person from a source of reinforcement to a different open location for a specified period of time or until the problem behavior has subsided to discontinue or reduce the frequency of problematic behavior.
"Treatment" means individually planned, sound, and therapeutic interventions that are intended to improve or maintain functioning of an individual receiving services in those areas that show impairment as the result of mental disability, substance addiction, or physical impairment. In order to be considered sound and therapeutic, the treatment must conform to current acceptable professional practice.
"Variance" means temporary or permanent waiver of compliance with a regulation or portion of a regulation, or permission to meet the intent of the regulation by a method other than that specified in the regulation, when the department, in its sole discretion, determines (i) enforcement will create an undue hardship and (ii) resident care will not be adversely affected.
"Volunteers" means any individual or group who of their own free will, and without any financial gain, provides goods and services to the program without compensation.
12VAC35-46-20. Service description and applications; required elements.
A. In order to determine whether an applicant is subject to these regulations, the applicant must submit a service description initially.
B. Each provider shall have a written service description that accurately describes its structured program of care and treatment consistent with the treatment, habilitation, or training needs of the residential population it serves. Service description elements shall include:
1. The mental health, substance abuse, mental retardation, or brain injury population it intends to serve;
2. The mental health, substance abuse, mental retardation, or brain injury interventions it will provide;
3. Provider goals;
4. Services provided; and
5. Contract services, if any.
C. The provider shall develop, implement, review, and revise its services according to the provider's mission and shall have that information available for public review.
D. Initial applications,
1. A completed application includes, but is not limited to, an initial application form; proposed working budget for the year showing projected revenue and expenses for the first year of operation and a balance sheet showing assets and liabilities; evidence of financial resources or a line of credit sufficient to cover estimated operating expenses for 90 days unless the facility is operated by a state or local government agency, board, or commission; a service description; a proposed staffing/supervision plan including the staff information sheet; copies of all job descriptions; evidence of the applicant's authority to conduct business in Virginia; a copy of the floor plan with dimensions of rooms; a certificate of occupancy; current health inspection; evidence of consultation with state or local fire prevention authorities; a list of board members, if applicable; three references for the applicant; and, if required by the department, references for three officers of the board if applicable. This information shall be submitted to and approved by the department in order for the application to be considered complete.
2. All initial applications that are not complete within 12 months shall be closed.
3. Facilities operated by state or local government agencies, boards, and commissions shall submit evidence of sufficient funds to operate including a working budget showing appropriated revenue and projected expenses for the coming year.
4. Currently licensed providers shall demonstrate that they are operating in substantial compliance with applicable regulations before new facilities operated by the same provider will be licensed.
E. Renewal applications. A completed application for renewal of a facility's license shall be submitted within 30 days after being notified to submit a renewal application.
12VAC35-46-30. The investigation.
The department shall arrange and conduct an on-site inspection of the facility and a thorough review of the services and an investigation of the character, reputation, status, and responsibility of the applicant.
12VAC35-46-40. Review of facilities.
A. Representatives of the department shall make announced and unannounced reviews during the effective dates of the license. The purpose of these reviews is to monitor compliance with applicable regulations.
B. Representatives of the department shall notify relevant local governments and placing and funding agencies, including the Office of Comprehensive Services, of multiple health and safety or human rights violations in children's residential facilities when such violations result in the lowering of the license to provisional status.
12VAC35-46-50. Posting of information.
A. Information concerning the application for initial licensure of children's residential facilities shall be posted to the department's website by locality.
B. An accurate listing of all licensed facilities including information on renewal, denial, or provisional licensure, and services shall be posted on the department's website by locality.
12VAC35-46-60. General requirements.
A. The provider shall demonstrate substantial compliance with these regulations to demonstrate that its program and physical plant provide reasonably safe and adequate care while approved plans of action to correct findings of noncompliance are being implemented and there are no noncompliances that pose an immediate and direct danger to residents.
B. Corporations sponsoring residential facilities for children shall maintain their corporate status in accordance with Virginia law.
C. The provider shall comply with the terms of its license.
D. A license is not transferable and automatically expires when there is a change of ownership or sponsorship.
E. The current license shall be posted at all times in a place conspicuous to the public.
F. A license shall not be issued to a facility when noncompliance poses an immediate danger to a resident's life, health, or safety.
G. Intermediate sanctions authorized by statute may be imposed at the discretion of the department.
H. Each provider shall self-report to the department within 10 days lawsuits against or settlements with residential facility operators relating to the health and safety or human rights of residents and any criminal charges against staff that may have been made relating to the health and safety or human rights of residents.
I. The provider shall comply with all other applicable federal, state, or local laws and regulations.
J. The provider's current policy and procedure manual shall be readily accessible to all staff.
K. Providers shall not engage in willful action or gross negligence that jeopardizes the care or protection of residents.
L. Providers shall not engage in conduct or practices that are in violation of statutes related to abuse or neglect of children.
M. Providers shall not deviate significantly from the program or services for which a license was issued without obtaining prior written approval from the department.
N. Providers shall not make false statements on the application for licensure or misrepresent facts in the application process.
12VAC35-46-70. Resident's rights.
Each provider shall guarantee resident rights as outlined in § 37.2-400 of the Code of Virginia and in the Rules and Regulations to Assure the Rights of Individuals Receiving Services from Providers Licensed, Funded, or Operated by the Department of Mental Health, Mental Retardation and Substance Abuse Services (12VAC35-115).
12VAC35-46-80. Written corrective action plans.
A. If there is noncompliance with applicable regulations during an initial or ongoing review or investigation, the department shall issue a licensing report describing the noncompliance and requesting the provider to submit a corrective action plan.
B. The provider shall submit to the department and implement a written corrective action plan for each regulation for which the provider is found to be in noncompliance.
C. The corrective action plan shall include a:
1. Description of each corrective action to be taken to correct the noncompliance and to prevent reoccurrence in the future and the person responsible for implementation;
2. Date of completion for each action; and
3. Signature of the person responsible for oversight of the implementation of the pledged corrective action.
D. The provider shall submit the corrective action plan to the department within 15 business days of the issuance of the licensing report. Extensions may be granted by the department when requested prior to the due date, but extensions shall not exceed an additional 10 business days. An immediate corrective action plan shall be required if the department determines that the violations pose a threat to the health, safety, or welfare of residents.
E. A corrective action plan shall be approved by the department. The provider shall have an additional 10 business days to submit a revised corrective action plan after receiving a notice that the plan submitted has not been approved.
12VAC35-46-90. Licenses.
A. A conditional license shall be issued to a new provider that demonstrates compliance with administrative and policy requirements but has not demonstrated compliance with all of these regulations. A conditional license shall not exceed six months, but may be renewed, not to exceed 12 successive months for all conditional licenses and renewals combined.
B. A provisional license may be issued to a provider that has demonstrated an inability to maintain compliance with these regulations or other applicable regulations, has violations of licensing regulations that pose a threat to the health or safety of residents being served, or has two or more systemic deficiencies.
1. A provisional license may be issued at any time.
2. The term of a provisional license may not exceed six months unless allowed by the Code of Virginia.
3. A provisional license may be renewed, but a provisional license and any renewals shall not exceed 12 successive months for all provisional licenses and renewals combined.
C. An annual license:
1. Shall be issued when the provider applies for renewal while holding a conditional or provisional license or certificate and substantially meets or exceeds the requirements of these regulations and other regulations and statutes.
2. May be issued at any time if the provider has received one systemic deficiency.
3. May be renewed, but an annual license or certificate and any renewals thereof shall not exceed a period of 36 successive months for all annual licenses and renewals combined.
D. A triennial license shall be issued when the provider:
1. Applies for renewal while holding an annual or triennial license; and
2. Substantially meets or exceeds the requirements of these regulations and other applicable regulations and statutes.
E. The term of a facility's license may be modified at any time during the licensure period based on a change in the facility's compliance with these regulations and other applicable statutes and regulations.
12VAC35-46-100. Application fees.
A. There shall be a $500 nonrefundable initial application fee. If the application is closed, denied, or withdrawn all subsequent initial applications shall require another $500 fee.
B. There shall be a $100 nonrefundable renewal application fee.
C. A renewal fee shall not be charged to providers directly following the issuance of a conditional license.
D. The application fee shall not apply to state or local government-owned, operated, or contracted facilities.
E. Application fees shall be used for the development and delivery of training for providers and staff of children's residential facilities and regulators of these facilities.
12VAC35-46-110. Modification.
A. The conditions of a license may be modified during the term of the license with respect to the capacity, residents' age range, facility location, residents' gender, or changes in the services. Limited modifications may be approved during the conditional licensure period.
B. The provider shall submit a written report of any contemplated changes in operation that would affect the terms of the license or the continuing eligibility for licensure to the department.
C. A change shall not be implemented prior to approval by the department. The provider shall be notified in writing within 60 days following receipt of the request as to whether the modification is approved or a new license is required.
12VAC35-46-120. Denial.
A. An application for licensure may be denied when the applicant:
1. Violates any provision of applicable laws or regulations made pursuant to such laws;
2. Has a founded disposition of child abuse or neglect after the appeal process has been completed;
3. Has been convicted of a crime listed in § 37.2-416 or 63.2-1726 of the Code of Virginia;
4. Has made false statements on the application or misrepresentation of facts in the application process;
5. Has not demonstrated good character and reputation as determined through references, background investigations, driving records, and other application materials;
6. Has a history of adverse licensing actions or sanctions;
7. Permits, aids, or abets in the commission of an illegal act in services delivered by the provider; or
8. Engages in conduct or practices detrimental to the welfare of any individual receiving services from the provider.
B. If denial of a license is recommended, the facility shall be notified in writing of the deficiencies, the proposed action, the right to appeal, and the appeal process.
12VAC35-46-130. Revocation.
A. A license may be revoked when the provider:
1. Violates any provision of applicable laws or regulations;
2. Engages in conduct or practices that are in violation of statutes related to abuse or neglect of children;
3. Deviates significantly from the program or services for which a license was issued without obtaining prior written approval from the department or fails to correct such deviations within the specified time;
4. Permits, aids, or abets the commission of an illegal act in services delivered by the provider; or
5. Engages in conduct or practices detrimental to the welfare of any individual receiving services.
B. If revocation of a license is recommended, the facility shall be notified in writing of the deficiencies, the proposed action, the right to appeal, and the appeal process.
12VAC35-46-140. Summary suspension.
A. In conjunction with any proceeding for revocation, denial, or other action, when conditions or practices exist that pose an immediate and substantial threat to the health, safety, and welfare of the residents, the commissioner may issue an order of summary suspension of the license to operate a children's residential facility when he believes the operation of the facility should be suspended during the pendency of such proceeding.
B. Prior to the issuance of an order of summary suspension, the department shall contact the Executive Secretary of the Supreme Court of Virginia to obtain the name of a hearing officer. The department shall schedule the time, date, and location of the administrative hearing with the hearing officer.
C. The order of summary suspension shall take effect upon its issuance. It shall be delivered by personal service and certified mail, return receipt requested, to the address of record of the facility as soon as practicable. The order shall set forth:
1. The time, date, and location of the hearing;
2. The procedures for the hearing;
3. The hearing and appeal rights; and
4. Facts and evidence that formed the basis for the order of summary suspension.
D. The hearing shall take place within three business days of the issuance of the order of summary suspension.
E. The department shall have the burden of proving in any summary suspension hearing that it had reasonable grounds to require the facility to cease operations during the pendency of the concurrent revocation, denial, or other proceeding.
F. The administrative hearing officer shall provide written findings and conclusions, together with a recommendation as to whether the license should be summarily suspended, to the commissioner within five business days of the hearing.
G. The commissioner shall issue a final order of summary suspension or make a determination that the summary suspension is not warranted based on the facts presented and the recommendation of the hearing officer within seven business days of receiving the recommendation of the hearing officer.
H. The commissioner shall issue and serve on the children's residential facility or its designee by personal service or by certified mail, return receipt requested, either:
1. A final order of summary suspension including (i) the basis for accepting or rejecting the hearing officer's recommendations and (ii) notice that the children's residential facility may appeal the commissioner's decision to the appropriate circuit court no later than 10 days following issuance of the order; or
2. Notification that the summary suspension is not warranted by the facts and circumstances presented and that the order of summary suspension is rescinded.
I. The facility may appeal the commissioner's decision on the summary suspension to the appropriate circuit court no more than 10 days after issuance of the final order.
J. The outcome of concurrent revocation, denial, and other proceedings shall not be affected by the outcome of any hearing pertaining to the appropriateness of the order of summary suspension.
K. At the time of the issuance of the order of summary suspension, the department shall contact the appropriate agencies to inform them of the action and the need to develop relocation plans for residents, and ensure that parents and guardians are informed of the pending action.
12VAC35-46-150. Variances.
A. Any request for a variance shall be submitted in writing to the department and shall include:
1. Justification why enforcement of the regulation would create an undue hardship;
2. How the facility can comply with the intent of the regulation; and
3. Justification why resident care would not be adversely affected if the variance was granted.
B. A variance shall not be implemented prior to approval of the department.
12VAC35-46-160. Investigation of complaints and allegations.
The department is responsible for complete and prompt investigation of all complaints and allegations made against providers, and for notification of the appropriate persons or agencies when removal of residents may be necessary. Suspected criminal violations shall be reported to the appropriate law-enforcement authority.
Part II
Administration12VAC35-46-170. Governing body.
A. The provider shall clearly identify the corporation, association, partnership, individual, or public agency that is the licensee.
B. The provider shall clearly identify any governing board, body, entity, or person to whom it delegates the legal responsibilities and duties of the provider.
12VAC35-46-180. Responsibilities of the provider.
A. The provider shall appoint a qualified chief administrative officer to whom it delegates, in writing, the authority and responsibility for administrative direction of the facility.
B. The provider shall develop and implement a written decision-making plan that shall provide for a staff person with the qualifications of the chief administrative officer or program director to be designated to assume the temporary responsibility for the operation of the facility. Each plan shall include an organizational chart.
C. The provider shall develop a written statement of the objectives of the facility including a description of the target population and the programs to be offered.
D. The provider shall develop and implement written policies and procedures to monitor and evaluate service quality and effectiveness on a systematic and on-going basis. The provider shall implement improvements when indicated.
12VAC35-46-190. Fiscal accountability.
A. Facilities operated by corporations, unincorporated organizations or associations, individuals, or partnerships shall prepare at the end of each fiscal year:
1. An operating statement showing revenue and expenses for the fiscal year just ended;
2. A working budget showing projected revenue and expenses for the next fiscal year that gives evidence that there are sufficient funds to operate; and
3. A balance sheet showing assets and liabilities for the fiscal year just ended.
B. There shall be a system of financial recordkeeping that shows a separation of the facility's accounts from all other records.
C. The provider shall develop and implement written policies and procedures that address the day-to-day handling of facility funds to include:
1. Handling of deposits;
2. Writing of checks; and
3. Handling of petty cash.
12VAC35-46-200. Insurance.
A. The provider shall maintain liability insurance covering the premises and the facility's operations.
B. The provider shall provide documentation that all vehicles used to transport residents are insured, including vehicles owned by staff.
C. The members of the governing body and staff who have been authorized to handle the facility's or residents' funds shall be bonded or otherwise indemnified against employee dishonesty.
12VAC35-46-210. Fundraising.
The provider shall not use residents in its fundraising activities without written permission of the legal guardian and the permission of residents 14 years or older.
12VAC35-46-220. Weapons.
The provider shall develop and implement written policies and procedures governing the possession and use of firearms, pellet guns, air guns, and other weapons on the facility's premises and during facility-related activities. The policy shall provide that no firearms, pellet guns, air guns, or other weapons shall be permitted on the premises or at facility-sponsored activities unless the weapons are:
1. In the possession of licensed security personnel or law-enforcement officers;
2. Kept securely under lock and key; or
3. Used by a resident with the legal guardian's permission under the supervision of a responsible adult in accord with policies and procedures developed by the facility for the weapons' lawful and safe use.
12VAC35-46-230. Relationship to the department.
A. The provider shall submit or make available to the department such reports and information as the department may require to establish compliance with these regulations and other applicable regulations and statutes.
B. The governing body or its official representative shall notify the department within five working days of any change in administrative structure or newly hired chief administrative officer or program director.
12VAC35-46-240. Facilities serving persons over the age of 17 years.
Facilities that are approved to serve persons over the age of 17 years shall comply with these regulations for all occupants regardless of age, except when it is determined by the department that housing, programs, services, and supervision for such persons are provided separately from those for the other residents.
12VAC35-46-250. Health information.
A. Health information required by this section shall be maintained for each staff member and for each individual who resides in a building occupied by residents, including each person who is not a staff member or resident of the facility. Health information shall be handled, maintained, and stored in a fashion that maintains confidentiality of the information at all times.
B. Tuberculosis evaluation.
1. At the time of hire or residency at the facility, each individual shall submit the results of a screening assessment documenting the absence of tuberculosis in a communicable form as evidenced by the completion of a form containing, at a minimum, the elements of a current screening form published by the Virginia Department of Health. The screening assessment shall be no older than 30 days.
2. Each individual shall annually submit the results of a screening assessment, documenting that the individual is free of tuberculosis in a communicable form as evidenced by the completion of a form containing, at a minimum, the elements of a current screening form published by the Virginia Department of Health.
12VAC35-46-260. Physical or mental health of personnel.
A. The provider or the department may require a report of examination by a licensed physician or mental health professional when there are indications that an individual's physical, mental, or emotional health may jeopardize the care of residents.
B. An individual who is determined by a licensed physician or mental health professional to show an indication of a physical or mental condition that may jeopardize the safety of residents or that would prevent the performance of duties shall be removed immediately from contact with residents and food served to residents until the condition is cleared as evidenced by a signed statement from the physician or mental health professional.
12VAC35-46-270. Qualifications.
A. Regulations establishing minimum position qualifications shall be applicable to all providers. In lieu of the minimum position qualifications contained in this chapter, providers subject to (i) the rules and regulations of the Virginia Department of Human Resource Management or (ii) the rules and regulations of a local government personnel office may develop written minimum entry-level qualifications in accord with the rules and regulations of the supervising personnel authority.
B. A person who assumes or is designated to assume the responsibilities of a position or any combination of positions described in these regulations after December 28, 2007, shall:
1. Meet the qualifications of the position or positions;
2. Fully comply with all applicable regulations for each function; and
3. Demonstrate a working knowledge of the policies and procedures that are applicable to his specific position or positions.
C. When services or consultations are obtained on a contractual basis they shall be provided by professionally qualified personnel.
12VAC35-46-280. Job descriptions.
A. There shall be a written job description for each position that, at a minimum, includes the:
1. Job title;
2. Duties and responsibilities of the incumbent;
3. Job title 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 at the time of employment or assignment.
12VAC35-46-290. Written personnel policies and procedures.
A. The provider shall have and implement provider approved written personnel policies and make its written personnel policies readily accessible to each staff member.
B. The provider shall develop and implement written policies and procedures to assure that persons employed in or designated to assume the responsibilities of each position possess the education, experience, knowledge, skills, and abilities specified in the job description for the position.
12VAC35-46-300. Personnel records.
A. Separate up-to-date written or automated personnel records shall be maintained for each employee, student/intern, volunteer, and contractual service provider for whom background investigations are required by Virginia statute. Content of personnel records of volunteers, students/interns, and contractual service providers may be limited to documentation of compliance with requirements of Virginia laws regarding child protective services and criminal history background investigations.
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. Reports of required health examinations;
5. Annual performance evaluations;
6. Date of employment for each position held and separation;
7. Documentation of compliance with requirements of Virginia laws regarding child protective services and criminal history background investigations;
8. Documentation of educational degrees and of professional certification or licensure;
9. Documentation of all training required by these regulations and any other training received by individual staff; and
10. A current job description.
C. Personnel records, including separate health records, shall be retained in their entirety for at least three years after separation from employment, contractual service, student/intern, or volunteer service.
12VAC35-46-310. Staff development.
A. Required initial training.
1. Within seven days following their begin date, each staff member responsible for supervision of children shall receive basic orientation to the facility's behavior intervention policies, procedures, and techniques regarding less restrictive interventions, timeout, and physical restraint.
2. Within 14 days following an individual's begin date, and before an individual is alone supervising children, the provider shall conduct emergency preparedness and response training that shall include:
a. Alerting emergency personnel and sounding alarms;
b. Implementing evacuation procedures, including evacuation of residents with special needs (i.e., deaf, blind, nonambulatory);
c. Using, maintaining, and operating emergency equipment;
d. Accessing emergency information for residents including medical information; and
e. Utilizing community support services.
3. Within 14 days following their begin date, new employees, employees transferring from other facilities operated by the same provider, relief staff, volunteers, and students/interns shall be given orientation and training regarding:
a. The objectives of the facility;
b. Practices of confidentiality;
c. The decision-making plan;
d. These regulations including the prohibited actions as outlined in this regulation; and
e. Other policies and procedures that are applicable to their positions, duties, and responsibilities.
4. Within 30 days following their begin date, all staff working with residents shall be enrolled in a standard first aid class and in a cardiopulmonary resuscitation class facilitated by the American Red Cross or other recognized authority, unless the individual is currently certified in first aid and cardiopulmonary resuscitation.
5. Within 30 days following their begin date, all staff working with residents shall be trained in child abuse and neglect, mandatory reporting, maintaining appropriate professional relationships, and interaction among staff and residents, and suicide prevention.
6. Within 30 days following their begin date, all staff shall be trained on the facility's policies and procedures regarding standard precautions.
7. Within 30 days following their begin date, all staff shall be trained on appropriate siting of children's residential facilities, and good neighbor policies and community relations.
8. Before administering medication, all staff responsible for medication administration 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.
9. All staff shall be trained in any area of quality improvement as identified from the results of the quality improvement plan.
B. Required annual retraining.
1. All employees, contractors, students/interns, and volunteers shall complete an annual refresher emergency preparedness and response training that shall include:
a. Alerting emergency personnel and sounding alarms;
b. Implementing evacuation procedures, including evacuation of residents with special needs (i.e., deaf, blind, nonambulatory);
c. Using, maintaining, and operating emergency equipment;
d. Accessing emergency information for residents including medical information; and
e. Utilizing community support services.
2. All staff who administer medication shall complete annual refresher medication training.
3. All child care staff shall receive annual retraining on the provider's behavior supports and timeout policies and procedures.
4. All staff working with residents shall receive annual retraining in child abuse and neglect, mandatory reporting, maintaining appropriate professional relationships, and interaction among staff and residents, and suicide prevention.
5. All staff shall receive annual retraining on the provider's policies and procedures regarding standard precautions.
C. Each full-time staff person who works with residents shall complete an additional 15 hours of annual training applicable to their job duties.
D. Providers shall develop and implement written policies and procedures to ensure that part-time staff receive training applicable to their positions.
E. Training provided shall be comprehensive and based on the needs of the population served to ensure that staff have the competencies to perform their jobs.
12VAC35-46-320. Staff supervision.
The provider shall develop and implement written policies and procedures regarding the supervision of employees, volunteers, contractors, and students/interns. These policies and procedures shall include:
1. Type of supervision;
2. Frequency of supervision; and
3. How the supervision will be documented.
12VAC35-46-330. The applicant.
As a condition of initial licensure and, if appropriate, license renewal, each applicant shall:
1. Provide documentation that they have been trained on appropriate siting of children's residential facilities, and good neighbor policies and community relations;
2. Be interviewed in person by the department to determine the qualifications of the owner or operator as set out in these regulations. Should the applicant not be qualified to perform the duties of the chief administrative officer, the applicant shall hire an individual with the qualifications, as set out in these regulations, to perform the duties of the chief administrative officer; and
3. Provide evidence of having relevant prior experience.
12VAC35-46-340. The chief administrative officer.
A. The chief administrative officer shall have the following responsibilities:
1. Responsibility for compliance with these regulations and other applicable regulations;
2. Responsibility for all personnel;
3. Responsibility for overseeing the facility operation in its entirety, including the approval of the design of the structured program of care and its implementation; and
4. Responsibility for the facility's financial integrity.
B. A chief administrative officer appointed after December 28, 2007, shall have at least:
1. A master's degree in social work, psychology, counseling, nursing, or administration and a combination of two years professional experience working with children and in administration and supervision;
2. A baccalaureate degree in social work, psychology, counseling, nursing, or administration and three years of combined professional experience with children, and in administration and supervision; or
3. A baccalaureate degree and a combination of four years professional experience in a children's residential facility and in administration and supervision.
C. Any applicant for the chief administrative officer position shall submit the following to demonstrate compliance with the qualifications required by this regulation for the chief administrative officer:
1. Official transcripts from the accredited college or university of attendance within 30 days of hire; and
2. Documentation of prior relevant experience.
12VAC35-46-350. Program director.
A. The facility's program shall be directed by one or more qualified persons.
B. Persons directing programs shall be responsible for the development and implementation of the programs and services offered by the facility, including overseeing assessments, service planning, staff scheduling, and supervision.
C. Persons directing programs of a facility licensed to care for 13 or more residents shall be full-time, qualified staff members.
D. A person appointed after December 28, 2007, to direct programs shall have at least:
1. A master's degree in social work, psychology, counseling, or nursing and a combination of two years professional experience with children in a children's residential facility and in administration or supervision;
2. A baccalaureate degree in social work, psychology, counseling, or nursing and a combination of three years professional experience with children in a children's residential facility and in administration or supervision;
3. A baccalaureate degree and a combination of four years of professional experience with children in a children's residential facility and in administration or supervision; or
4. A license issued by the Commonwealth of Virginia as a drug or alcoholism counselor/worker if the facility's purpose is to treat drug abuse or alcoholism.
E. For services providing brain injury services, a person appointed to direct programs shall have a master's degree in psychology, or be a nurse licensed in Virginia, a rehabilitation professional licensed in Virginia, or a Certified Brain Injury Specialist with at least one year of clinical experience working with individuals with brain injury. Program directors who hold a bachelor's degree in the field of institutional management, social work, education, or other allied discipline shall have a minimum of two years of experience working with individuals with brain injury.
F. Any applicant for the program director position shall submit the following to demonstrate compliance with the qualifications required by this regulation for the program director:
1. Official transcripts from the accredited college or university of attendance within 30 days of hire; and
2. Documentation of prior relevant experience.
12VAC35-46-360. Case manager.
A. Case managers shall have the responsibility for coordination of all services offered to each resident.
B. Case managers shall have:
1. A master's degree in social work, psychology, or counseling;
2. A baccalaureate degree in social work or psychology with documented field work experience and shall be supervised by the program director or other staff employed by the provider with the same qualifications; or
3. A baccalaureate degree and three years of professional experience working with children.
12VAC35-46-370. Child care supervisor.
A. Child care supervisors shall have responsibility for the:
1. Development of the daily living program within each child care unit; and
2. Orientation, training, and supervision of direct care workers.
B. Child care supervisors shall have:
1. A baccalaureate degree in social work or psychology and two years of professional experience working with children one year of which must have been in a residential facility for children;
2. A high school diploma or a General Education Development Certificate (G.E.D.) and a minimum of five years professional experience working with children with at least two years in a residential facility for children; or
3. A combination of education and experience working with children as approved by the department.
12VAC35-46-380. Child care staff.
A. The child care worker shall have responsibility for guidance and supervision of the children to whom he is assigned including:
1. Overseeing physical care;
2. Development of acceptable habits and attitudes;
3. Management of resident behavior; and
4. Helping to meet the goals and objectives of any required individualized service plan.
B. A child care worker and a relief child care worker shall:
1. Have a baccalaureate degree in human services;
2. Have an associates degree and three months experience working with children; or
3. Be a high school graduate or have a G.E.D. and have six months of experience working with children.
C. Child care staff with a high school diploma or G.E.D. with no experience working with children may not work alone, but may be employed as long as they are working directly with the chief administrative officer, program director, case manager, child care supervisor, or a child care worker with one or more years of professional experience working with children.
D. Child care staff in brain injury residential services shall have two years experience working with children with disabilities.
E. An individual hired, promoted, demoted, or transferred to a child care worker's position after August 6, 2009, shall be at least 21 years old, except as provided in 12VAC35-46-270 A.
F. The provider shall not be dependent on temporary contract workers to provide resident care.
12VAC35-46-390. Relief staff.
Qualified relief staff shall be employed as necessary to meet the needs of the programs and services offered and to maintain a structured program of care in accordance with these regulations.
12VAC35-46-395. Additional requirements for residential facilities for individuals with brain injury.
The provider of brain injury services shall employ or contract with a neuropsychologist or licensed clinical psychologist specializing in brain injury to assist, as appropriate, with initial assessments, development of individualized service plans, crises, staff training, and service design.
12VAC35-46-400. Volunteers and student/interns.
A. A facility that uses volunteers or students/interns shall develop and implement written policies and procedures governing their selection and use.
B. The facility shall not be dependent upon volunteers or students/interns to provide basic services.
C. Responsibilities of volunteers and students/interns shall be clearly defined in writing.
D. Volunteers and students/interns shall have qualifications appropriate to the services they render.
12VAC35-46-410. Support functions.
A. Child care workers and other staff responsible for child care may assume the duties of nonchild care personnel only when these duties do not interfere with their child care responsibilities.
B. Residents shall not be solely responsible for support functions including, but not necessarily limited to, food service, maintenance of building and grounds, and housekeeping.
Part III
Residential Environment12VAC35-46-420. Buildings, inspections and building plans.
A. All buildings and building related equipment shall be inspected and approved by the local building official. Approval shall be documented by a certificate of occupancy.
B. The facility shall document at the time of its original application evidence of consultation with state or local fire prevention authorities.
C. The facility shall document annually after the initial application that buildings and equipment are maintained in accordance with the Virginia Statewide Fire Prevention Code (13VAC5-51).
D. At the time of the original application and at least annually thereafter the buildings shall be inspected and approved by state or local health authorities, whose inspection and approval shall include:
1. General sanitation;
2. The sewage disposal system;
3. The water supply; and
4. Food service operations.
E. The buildings and physical environment shall provide adequate space and shall be of a design that is suitable to house the programs and services provided and meet specialized needs of the residents.
F. Building plans and specifications for new construction, change in use of existing buildings, and any structural modifications or additions to existing buildings shall be submitted to and approved by the department and by other appropriate regulatory authorities.
G. Swimming pools shall be inspected annually by the state or local health authorities or by a swimming pool business.
12VAC35-46-430. Heating systems, ventilation, and cooling systems.
A. Heat shall be evenly 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. Natural or mechanical ventilation to the outside shall be provided in all rooms used by residents.
C. 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.
12VAC35-46-440. Lighting.
A. Artificial lighting shall be by electricity.
B. All areas within buildings shall be lighted for safety and the lighting shall be sufficient for the activities being performed.
C. Lighting in halls shall be adequate and shall be continuous at night.
D. Operable flashlights or battery-powered lanterns shall be available for each staff member on the premises between dusk and dawn to use in emergencies.
E. Outside entrances and parking areas shall be lighted for protection against injuries and intruders.
12VAC35-46-450. Plumbing.
A. Plumbing shall be maintained in good operational condition.
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 shall be maintained between 100°F and 120°F.
12VAC35-46-460. 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 bathroom equipped with a bathtub 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 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, except secure custody facilities. Facilities licensed 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.
12VAC35-46-470. Personal necessities.
A. An adequate supply of personal necessities shall be available to the residents at all times for purposes of personal hygiene and grooming.
B. Clean, individual washcloths and towels shall be in good repair and available once each week and more often if needed.
C. When residents are incontinent or not toilet trained:
1. Provision shall be made for sponging, diapering, or other similar care on a nonabsorbent changing surface that shall be cleaned with warm soapy water after each use.
2. A covered diaper pail, or its equivalent, with leakproof disposable liners shall be used to dispose of diapers. If both cloth and disposable diapers are used, there shall be a diaper pail for each.
3. Adapter seats and toilet chairs shall be cleaned immediately after each use with appropriate cleaning materials.
4. Staff shall thoroughly wash their hands with warm soapy water immediately after assisting a child or themselves with toileting.
5. Appropriate privacy, confidentiality, and dignity shall be maintained for residents during toileting and diapering.
12VAC35-46-480. Sleeping areas.
A. When residents are four years of age or older, boys and girls shall have separate sleeping areas.
B. No more than four children shall share a bedroom or sleeping area.
C. Children who use wheelchairs, crutches, canes, or other mechanical devices for assistance in walking shall be provided with a planned, personalized means of effective egress for use in emergencies.
D. 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.
E. 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 of at least 7-1/2 feet exclusive of protrusions, duct work, or dormers.
F. Each child shall have a separate, clean, comfortable bed equipped with a clean mattress, clean pillow, clean blankets, clean bed linens, and, if needed, a clean waterproof mattress cover.
G. Bed linens shall be changed at least every seven days and more often if needed.
H. 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 (5VAC63).
I. Cribs shall be provided for residents under two years of age.
J. 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 except in secure custody facilities.
K. The environment of sleeping areas shall be conducive to sleep and rest.
12VAC35-46-490. Smoking prohibition.
Smoking shall be prohibited in living areas and in areas where residents participate in programs.
12VAC35-46-500. Residents' privacy.
A. 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.
B. Windows in bathrooms, sleeping areas, and dressing areas shall provide for privacy.
C. 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.
D. Residents shall be provided privacy from routine sight supervision by staff members of the opposite gender while bathing, dressing, or conducting toileting activities. This section does not apply to medical personnel performing medical procedures, staff providing assistance to infants, or 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.
12VAC35-46-510. Audio and visual recordings.
Each provider shall have written policies and procedures regarding the photographing and audio or audio-video recordings of residents approved by the Office of Human Rights that shall ensure and provide that:
1. The written consent of the resident or the resident's legal guardian shall be obtained before the resident is photographed or recorded for research or provider publicity purposes.
2. No photographing or recording by provider staff shall take place without the resident or the resident's family or legal guardian being informed.
3. All photographs and recordings shall be used in a manner that respects the dignity and confidentiality of the resident.
12VAC35-46-520. Living rooms and indoor recreation space.
A. Each living unit shall have a living room, or other area for informal use, relaxation, and entertainment. The furnishings shall provide a comfortable, homelike environment that is appropriate to the ages of the residents.
B. All facilities shall have indoor recreation space that contains indoor recreation materials appropriate to the ages and interests of the residents.
C. Facilities licensed to care for 13 or more residents shall have indoor recreation space distinct from the living room. Recreation space is not required in every living unit.
12VAC35-46-530. Study space.
A. Facilities serving a school-age population shall provide study space. Study space may be assigned in areas used interchangeably for other purposes.
B. Study space shall be well lighted, quiet, and equipped with tables or desks and chairs.
12VAC35-46-540. Kitchen and dining areas.
A. Meals shall be served in areas equipped with sturdy tables and benches or chairs that are size and age appropriate for the residents.
B. Adequate kitchen facilities and equipment shall be provided for preparation and serving of meals.
C. Walk-in refrigerators, freezers, and other enclosures shall be equipped to permit emergency exits.
12VAC35-46-550. Laundry areas.
Appropriate space and equipment in good repair shall be provided if laundry is done at the facility.
12VAC35-46-560. Storage.
Space shall be provided for safe storage of items such as first aid equipment, household supplies, recreational equipment, luggage, out-of-season clothing, and other materials.
12VAC35-46-570. Staff quarters.
A. A separate, private bedroom shall be provided for staff and their families when a staff member is on duty for 24 consecutive hours or more.
B. A separate private bathroom shall be provided for staff and their families when there are more than four persons in the living unit and the staff person is on duty for 24 consecutive hours or more.
C. Staff and members of their families shall not share bedrooms with residents.
12VAC35-46-580. Office space.
Space shall be provided for administrative activities including, as appropriate to the program, confidential conversations and provision for storage of records and materials.
12VAC35-46-590. Building and grounds.
A. The facility's grounds shall be safe, properly maintained, and free of clutter and rubbish. The grounds include, but are not limited to, all areas where residents, staff, and visitors may reasonably be expected to have access, including roads, pavements, parking lots, open areas, stairways, railings, and potentially hazardous or dangerous areas.
B. The interior and exterior of all buildings shall be safe, properly maintained, clean, and in good working order. This includes, but is not limited to, required locks, mechanical devices, indoor and outdoor equipment, and furnishings.
C. Outdoor recreation space shall be available and appropriately equipped for the residents' use.
12VAC35-46-600. Equipment and furnishings.
A. All furnishings and equipment shall be safe, clean, and suitable to the ages and number of residents.
B. There shall be at least one continuously operable, nonpay telephone accessible to staff in each building in which children sleep or participate in programs.
12VAC35-46-610. Housekeeping and maintenance.
A. All buildings shall be well ventilated and free of stale, musty, or foul odors.
B. Adequate provision shall be made for the collection and legal disposal of garbage and waste materials.
C. Buildings shall be kept free of flies, roaches, rats, and other vermin.
D. A sanitizing agent shall be used in the laundering of bed, bath, table, and kitchen linens.
12VAC35-46-620. Farm and domestic animals.
A. Horses and other animals maintained on the premises shall be quartered 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 free of stray domestic animals.
D. Pets shall be provided with clean quarters and adequate food and water.
Part IV
Programs and Services12VAC35-46-625. Minimum service requirements.
A. The provider shall have and implement written policies and procedures for the on-site provision of a structured program of care or treatment of residents with mental illness, mental retardation, substance abuse, or brain injury. The provision, intensity, and frequency of mental health, mental retardation, substance abuse, or brain injury interventions shall be based on the assessed needs of the resident. These interventions, applicable to the population served, shall include, but are not limited to:
1. Individual counseling;
2. Group counseling;
3. Training in decision making, family and interpersonal skills, problem solving, self-care, social, and independent living skills;
4. Training in functional skills;
5. Assistance with activities of daily living (ADL's);
6. Social skills training in therapeutic recreational activities, e.g., anger management, leisure skills education and development, and community integration;
7. Providing positive behavior supports;
8. Physical, occupational, and/or speech therapy;
9. Substance abuse education and counseling; and
10. Neurobehavioral services for individuals with brain injury.
B. Each provider shall have formal arrangements for the evaluation, assessment, and treatment of the mental health or brain injury needs of the resident.
C. The provider shall have and implement written policies and procedures that address the provision of:
1. Psychiatric care;
2. Family therapy; and
3. Staffing appropriate to the needs and behaviors of the residents served.
12VAC35-46-630. Acceptance of children.
Children shall be accepted only by court order or by written placement agreement with legal guardians.
12VAC35-46-640. Admission procedures.
A. The facility shall have written criteria for admission that shall include:
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.
B. The facility shall accept and serve only those children whose needs are compatible with the services provided through the facility unless a child's admission is ordered by a court of competent jurisdiction.
C. Acceptance of a child as eligible for respite care by a facility approved to provide residential respite care is considered admission to the facility. Each individual period of respite care is not considered a separate admission.
D. Each facility shall provide documentation showing proof 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.
12VAC35-46-650. Least restrictive programming.
Each resident shall be placed in the least restrictive level of programming appropriate to individual functioning and available services.
12VAC35-46-660. Maintenance of residents' records.
A. A separate written or automated case record shall be maintained for each resident. In addition, all correspondence and documents received by the facility relating to the care of that resident shall be maintained as part of the case record. A separate health record may be kept on each resident.
B. Each record shall be kept up to date and in a uniform manner.
C. The provider shall develop and implement written policies and procedures for management of all records, written and automated, that shall describe confidentiality, accessibility, security, and retention of records pertaining to residents, including:
1. Access, duplication, dissemination, and acquiring 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 from loss, unauthorized alteration, inadvertent or unauthorized access, and disclosure of information and 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.
D. The policy shall specify what information is available to the resident.
E. Active and closed records shall be kept in areas that are accessible to authorized staff and protected from unauthorized access, fire, and flood.
1. When not in use written records shall be stored in a metal file cabinet or other metal compartment.
2. Facility staff shall assure the confidentiality of the residents' records by placing them in a locked cabinet or drawer or in a locked room when the staff member is not present.
F. Each resident's written record shall be stored separately subsequent to the resident's discharge according to applicable statutes and regulations.
G. Written and automated records shall be retained in their entirety for a minimum of three years after the date of discharge unless otherwise specified by state or federal requirements.
H. The face sheet shall be retained permanently unless otherwise specified by state or federal requirements.
I. Entries in a resident's record shall be current, dated, and authenticated by the person making the entry. Errors shall be corrected by striking through and initialing. If records are electronic, the provider shall develop and implement a policy and procedure to identify how corrections to the record will be made.
12VAC35-46-670. Record reviews.
Complete written policies and procedures for record reviews shall be developed and implemented that shall evaluate records for completeness, accuracy, and timeliness of documentation. Such policies shall include provisions for ongoing review to determine whether records contain all required service documentation, and release of information documents required by the provider.
12VAC35-46-680. Interstate compact on the placement of children.
A. Documentation of the prior approval of the administrator of the Virginia Interstate Compact on the Placement of Children, Virginia Department of Social Services, shall be retained in the record of each resident admitted from outside Virginia. The requirements of this section shall not apply to a facility providing documentation that the administrator of the Virginia Interstate Compact has determined the facility is statutorily exempt from the compact's provisions.
B. Documentation that the provider has sent copies of all serious incident reports regarding any child placed through the Interstate Compact to the administrator of the Virginia Interstate Compact on the Placement of Children shall be kept in the resident's record.
C. No later than five days after a resident has been transferred to another facility operated by the same sponsor, the resident's record shall contain documentation that the administrator of the Virginia Interstate Compact on the Placement of Children was notified in writing of the resident's transfer.
D. No later than 10 days after discharge, the resident's record shall contain documentation that the administrator of the Virginia Interstate Compact on the Placement of Children was notified in writing of the discharge.
E. The provider shall not discharge or send out-of-state youth in the custody of out-of-state social services agencies and courts to reside with a parent, relative, or other individual who lives in Virginia without the approval of the administrator of the Virginia Interstate Compact on the Placement of Children.
12VAC35-46-690. Participation of residents in human research.
The provider shall:
1. Implement a written policy stating that residents will not be used as subjects of human research; or
2. Document approval, as required by the department for each research project using residents as subjects of human research, unless such research is exempt from review.
12VAC35-46-700. Emergency and self-admissions.
Providers accepting emergency or self-admissions shall:
1. Develop and implement written policies and 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 of competent jurisdiction;
2. Place in each resident's record the order of a court of competent jurisdiction, 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. Clearly document in written assessment information gathered for the emergency admission that the individual meets the facility's criteria for admission.
12VAC35-46-710. Application for admission.
A. Admission shall be based on evaluation of an application for admission. The requirements of this section do not apply to court-ordered placements or transfer of a resident between residential facilities located in Virginia and operated by the same sponsor.
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's admission;
6. The behavior support needs of the prospective resident;
7. Family history and relationships;
8. Social and development history;
9. Current behavioral functioning and social competence;
10. History of previous treatment for mental health, mental retardation, substance abuse, brain injury, and behavior problems; and
11. Medication and drug use profile, which shall include:
a. History of prescription, nonprescription, and illicit drugs that were taken over the six months prior to admission;
b. Drug allergies, unusual and other adverse drug reactions, and ineffective medications; and
c. Information necessary to develop an individualized service plan and a behavior support plan.
C. The resident's record shall contain a completed assessment at the time of a routine admission or within 30 days after an emergency admission.
D. Each facility shall develop and implement written policies and 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.
12VAC35-46-720. Written placement agreement.
A. The facility, except a facility that accepts admission only upon receipt of the order of a court of competent jurisdiction, shall develop a written placement agreement that:
1. Authorizes the resident's placement;
2. Addresses acquisition of and consent for any medical treatment needed by the resident;
3. Addresses the rights and responsibilities of each party involved;
4. Addresses financial responsibility for the placement;
5. Addresses visitation with the resident; and
6. Addresses the education plan for the resident and the responsibilities of all parties.
B. Each resident's record shall contain, prior to a routine admission, a completed placement agreement signed by a facility representative and the parent, legal guardian, or placing agency.
C. The record of each person admitted based on a court order shall contain a copy of the court order.
12VAC35-46-730. Face sheet.
A. At the time of admission, each resident's record shall include a completed face sheet that contains (i) the resident's full name, last known residence, birth date, birthplace, gender, race, social security number or other unique identifier, religious preference, and admission date; and (ii) names, addresses, and telephone numbers of the resident's legal guardians, placing agency, emergency contacts, and parents, if appropriate.
B. Information shall be updated when changes occur.
C. The face sheet for pregnant teens shall also include the expected date of delivery and the name of the hospital to provide delivery services to the resident.
D. The face sheet of residents who are transferred to facilities operated by the same sponsor shall indicate the address and dates of placement and transfer at each location.
E. At the time of discharge the following information shall be added to the face sheet:
1. Date of discharge;
2. Reason for discharge;
3. Names and addresses of persons to whom the resident was discharged; and
4. Forwarding address of the resident, if known.
12VAC35-46-740. Initial objectives and strategies.
Within three days following admission, individualized, measurable objectives and strategies for the first 30 days shall be developed, distributed to affected staff and the resident, and placed in the resident's record. The objectives and strategies shall be based on the reasons for admitting the resident.
12VAC35-46-750. Individualized service plans/quarterly reports.
A. An individualized service plan shall be developed and placed in the resident's record within 30 days following admission and implemented immediately thereafter.
B. Individualized 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;
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. The initial individualized service plan shall be reviewed within 60 days of the initial plan and within each 90-day period thereafter and revised as necessary.
D. The provider shall develop and implement written policies and procedures to document progress of the resident towards meeting goals and objectives of the individualized service plan that shall include the:
1. Format;
2. Frequency; and
3. Person responsible.
E. There shall be a documented quarterly review of each resident's progress 60 days following the initial individualized service plan and within each 90-day period thereafter that shall report the:
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.
F. Each plan and quarterly progress report shall include the date it was developed and the signature of the person who developed it.
G. Staff responsible for daily implementation of the resident's individualized service plan shall be able to describe the resident's behavior in terms of the objectives in the plan.
H. There shall be documentation showing the involvement of the following parties unless clearly inappropriate, in developing and updating the individualized service plan and in developing the quarterly progress report:
1. The resident;
2. The resident's family, if appropriate, and legal guardian;
3. The placing agency; and
4. Facility staff.
I. The initial individualized service plan, each update, and all quarterly progress reports shall be distributed to the resident; the resident's family, if appropriate, legal guardian, or authorized representative; the placing agency; and appropriate facility staff.
12VAC35-46-760. Resident transfer between residential facilities located in Virginia and operated by the same sponsor.
A. Except when transfer is ordered by a court of competent jurisdiction, the receiving provider shall document at the time of transfer:
1. Preparation through sharing information with the resident, the family, if appropriate, the legal guardian, 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;
3. Receipt from the sending facility of a written summary of the resident's progress while at the facility, justification for the transfer, and the resident's current strengths and needs; and
4. Receipt of the resident's record.
B. The sending facility shall retain a copy of the face sheet and a written summary of the child's progress while at the facility and shall document the date of transfer and the name of the facility to which the resident has been transferred.
12VAC35-46-765. Discharge.
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. The record of each resident discharged upon receipt of the order of a court of competent jurisdiction shall contain a copy of the court order.
D. Residents shall be discharged only to the legal guardian or legally authorized representative.
E. A facility approved to provide residential respite care shall discharge a resident when the legal guardian no longer intends to use the facility's services.
F. 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.
G. Unless discharge is ordered by a court of competent jurisdiction prior to the planned discharge date, each resident's record shall contain:
1. Documentation that discharge has been planned and discussed with the parent, if appropriate; legal guardian; child-placing agency; and resident; and
2. A written discharge plan.
H. Discharge summaries.
1. No later than 30 days after discharge, a comprehensive discharge summary shall be placed in the resident's record and sent to the persons or agency that made the placement. The discharge summary shall review:
a. Services provided to the resident;
b. The resident's progress toward meeting individualized 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 the 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.
2. In lieu of a comprehensive discharge summary, the record of each resident discharged upon receipt of the order of a court of competent jurisdiction shall contain a copy of the court order.
12VAC35-46-770. Placement of residents outside the facility.
A resident shall not be placed outside the facility prior to the facility obtaining a child-placing agency license from the Department of Social Services, except as permitted by statute or by order of a court of competent jurisdiction.
12VAC35-46-780. Case management services.
A. The program of the facility shall be designed to provide case management services. At the time of the admission of any resident, the provider shall identify in writing the staff member responsible for providing case management services. Case management services shall address:
1. Helping the resident and the parents or legal guardian to understand the effects on the resident of separation from the family and the effect of group living;
2. Assisting the resident and the family to maintain their relationships and prepare for the resident's future care;
3. Utilizing appropriate community resources to provide services and maintain contacts with such resources;
4. Helping the resident strengthen his capacity to function productively in interpersonal relationships;
5. Conferring with the child care staff to help them understand the resident's needs in order to promote adjustment to group living; and
6. Working with the resident and with the family or any placing agency that may be involved in planning for the resident's future and in preparing the resident for the return home or to another family for independent living or for other residential care.
B. The provision of case management services shall be documented in each resident's record.
12VAC35-46-790. Therapy.
Therapy shall be provided by an individual (i) appropriately licensed by the Department of Health Professions to provide mental health therapy or counseling; or (ii) who is eligible for licensure and working under the supervision of a licensed therapist unless exempted from these requirements under the Code of Virginia.
12VAC35-46-800. Structured program of care.
A. There shall be evidence of a structured program of care designed to:
1. Meet the residents' physical and emotional needs;
2. Provide protection, guidance, and supervision; and
3. Meet the objectives of any required individualized service plan.
B. There shall be evidence of a structured daily routine designed to ensure the delivery of program services.
C. A daily communication log shall be maintained to inform staff of significant happenings or problems experienced by residents.
D. Health and dental complaints and injuries shall be recorded and shall include the (i) resident's name, complaint, and affected area; and (ii) time of the complaint.
E. The identity of the individual making each entry in the daily communication log shall be recorded.
F. Routines shall be planned to ensure that each resident receives the amount of sleep and rest appropriate for his age and physical condition.
G. Staff shall promote good personal hygiene of residents by monitoring and supervising hygiene practices each day and by providing instruction when needed.
H. The structured daily routine shall comply with any facility and locally imposed curfews.
12VAC35-46-810. Health care procedures.
A. The provider shall have and implement written procedures for promptly:
1. Providing or arranging for the provision of medical and dental services for health problems identified at admission;
2. Providing or arranging for the provision of routine ongoing and follow-up medical and dental services after admission;
3. Providing emergency services for each resident;
4. Providing emergency services 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; and
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.
12VAC35-46-820. Written policies and procedures for a crisis or clinical emergency.
The provider shall develop and implement written policies and procedures for a crisis or clinical emergency that shall include:
1. Procedures for crisis or clinical stabilization, and immediate access to appropriate internal and external resources, including a provision for obtaining physician and mental health clinical services if on-call physician back-up or mental health clinical services are not available; and
2. Employee or contractor responsibilities.
12VAC35-46-830. Documenting crisis intervention and clinical emergency services.
A. The provider shall develop and implement a method for documenting the provision of crisis intervention and clinical emergency services. Documentation shall include the following:
1. Date and time;
2. Nature of crisis or emergency;
3. Name of resident;
4. Precipitating factors;
5. Interventions/treatment provided;
6. Employees or contractors involved;
7. Outcome; and
8. Any required follow-up.
B. If a crisis or clinical emergency involves a resident who receives medical or mental health services, the crisis intervention documentation shall become part of his record.
C. There shall be written policies and procedures for referring to or receiving residents from:
1. Hospitals;
2. Law-enforcement officials;
3. Physicians;
4. Clergy;
5. Schools;
6. Mental health facilities;
7. Court services;
8. Private outpatient providers; and
9. Support groups or others, as applicable.
12VAC35-46-840. Medical examinations and treatment.
A. Each child 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 child transfers from one residential 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. Within seven days of placement, each resident shall have had a screening assessment for tuberculosis as evidenced by the completion of a screening form containing, at a minimum, the elements found on the Report of Tuberculosis Screening form published by the Virginia Department of Health. The screening assessment may be no older than 30 days.
C. A screening assessment for tuberculosis shall be completed annually on each resident as evidenced by the completion of a form containing, at a minimum, the elements of the Report of Tuberculosis Screening form published by the Virginia Department of Health.
D. 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.
E. 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.
F. A child with a communicable disease shall not be admitted unless a licensed physician certifies that:
1. The facility is capable of providing care to the child without jeopardizing residents and staff; and
2. The facility is aware of the required treatment for the child and the procedures to protect residents and staff.
G. Each resident's health record shall include written documentation of (i) an annual examination by a licensed dentist and (ii) follow-up dental care recommended by the dentist or as indicated by the needs of the resident. This requirement does not apply to respite care facilities.
H. Each resident's health record shall include notations of health and dental complaints and injuries and shall summarize symptoms and treatment given.
I. 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.
J. The provider shall develop and implement written policies and procedures that include use of standard precautions and address communicable and contagious medical conditions. These policies and procedures shall be approved by a medical professional.
K. A well-stocked first aid kit shall be maintained and readily accessible for minor injuries and medical emergencies.
12VAC35-46-850. Medication.
A. The provider shall develop and implement written policies and procedures regarding the delivery and administration of prescription and nonprescription medications used by residents. At a minimum these policies will address:
1. Identification of the staff member responsible for routinely communicating to the prescribing physician:
a. The effectiveness of prescribed medications; and
b. Any adverse reactions, or any suspected side effects.
2. Storage of controlled substances;
3. Documentation of medication errors and drug reactions; and
4. Documentation of any medications prescribed and administered following admission.
B. All medication shall be securely locked and properly labeled.
C. All staff responsible for medication administration 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.
D. Staff authorized to administer medication shall be informed of any known side effects of the medication and the symptoms of the side effects.
E. A program of medication, including over-the-counter medication, shall be initiated for a resident only when prescribed in writing by a person authorized by law to prescribe medication.
F. Medication prescribed by a person authorized by law shall be administered as prescribed.
G. A medication administration record shall be maintained of all medicines received by each resident and shall include:
1. Date the medication was prescribed;
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 error 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.
I. Medication refusals shall be documented including action taken by staff.
J. The provider shall develop and implement written policies and procedures for documenting medication errors, reviewing medication errors and reactions and making any necessary improvements, the disposal of medication, the storage of controlled substances, and the distribution of medication off campus. The policy and procedures must be approved by a health care professional. The provider shall keep documentation of this approval.
K. 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 children sleep or participate in programs.
L. Syringes and other medical implements used for injecting or cutting skin shall be locked.
12VAC35-46-860. Nutrition.
A. Each resident 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. Department of Health and Human Services and U.S. Department of Agriculture Dietary Guidelines for Americans, 2005, 6th Edition.
B. Menus of actual meals served shall be kept on file for at least six months.
C. Special diets shall be provided when prescribed by a physician and the established religious dietary practices of the resident shall be observed.
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.
F. Providers shall assure that food is available to residents who need to eat breakfast before the 15 hours have expired.
G. Providers shall receive approval from the department if they wish to extend the time between meals on weekends and holidays. There shall never be more than 17 hours between the evening meal and breakfast the following day on weekends and holidays.
12VAC35-46-870. Staff supervision of residents.
A. No member of the child care staff shall be on duty more than six consecutive days without a rest day, except in an emergency or as approved by the department for live-in staff.
B. Child care staff shall have an average of at least two rest days per week in any four-week period. Rest days shall be in addition to vacation time and holidays.
C. Child care staff other than live-in staff shall not be on duty more than 16 consecutive hours, except in an emergency.
D. There shall be at least one trained child care worker on duty and actively supervising residents at all times that one or more residents are present.
E. Whenever children are being supervised by staff there shall be at least one staff person present with a current basic certificate in standard first aid and a current certificate in cardiopulmonary resuscitation issued by the American Red Cross or other recognized authority.
F. Supervision policies.
1. The provider shall develop and implement written policies and procedures that address staff supervision of children including contingency plans for resident illnesses, emergencies, off-campus activities, and resident preferences. These policies and procedures shall be based on the:
a. Needs of the population served;
b. Types of services offered;
c. Qualifications of staff on duty; and
d. Number of residents served.
2. At all times the ratio of staff to residents shall be at least one staff to eight residents for facilities during the hours residents are awake, except when the department has approved or required a supervision plan with a different ratio based on the needs of the population served.
3. Providers requesting a ratio that allows a higher number of residents to be supervised by one staff person than was approved or required shall submit a justification to the department that shall include:
a. Why resident care will not be adversely affected; and
b. How residents' needs will be met on an individual as well as group basis.
4. Written policies and procedures governing supervision of residents and any justifications for a ratio deviation that allows a higher number of residents to be supervised by one staff than was approved or required shall be reviewed and approved by the department prior to implementation.
5. The supervision policies or a summary of the policies shall be provided, upon request, to the placing agency or legal guardian prior to placement.
12VAC35-46-880. Emergency telephone numbers.
A. There shall be an emergency telephone number where a staff person may be immediately contacted 24 hours a day.
B. Residents who are away from the facility and the adults responsible for their care during the absence shall be furnished with the emergency phone number.
12VAC35-46-890. Searches.
A. Strip searches and body cavity searches are prohibited except:
1. As permitted by other applicable state regulations; or
2. As ordered by a court of competent jurisdiction.
B. A provider that does not conduct pat downs shall have a written policy prohibiting them.
C. A provider that conducts pat downs shall develop and implement written policies and procedures governing them that shall provide that:
1. Pat downs shall be limited to instances where they are necessary to prohibit contraband;
2. Pat downs shall be conducted by personnel of the same gender as the resident being searched;
3. Pat downs shall be conducted only by personnel who are specifically authorized to conduct searches by the written policies and procedures; and
4. Pat downs shall be conducted in such a way as to protect the resident's dignity and in the presence of one or more witnesses.
12VAC35-46-900. Behavior support.
A. Within 30 days of admission, the provider shall develop and implement a written behavior support plan that allows the resident to self-manage his own behaviors. Each individualized behavior support plan 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;
3. Resident's parents, if appropriate;
4. Program director;
5. Placing agency staff; and
6. Other appropriate individuals.
C. Prior to working alone with an assigned resident each staff member shall demonstrate knowledge and understanding of that resident's behavior support plan.
D. Each provider shall develop and implement written policies and procedures concerning behavior support plans and other behavioral interventions that are directed toward maximizing the growth and development of the resident. In addition to addressing the previous requirements of this regulation, these policies and procedures shall:
1. Define and list techniques that are used and are available for use in the order of their relative degree of intrusiveness or restrictiveness;
2. Specify the staff members who may authorize the use of each technique;
3. Specify the processes for implementing such policies and procedures;
4. Specify the mechanism for monitoring the use of behavior support techniques; and
5. Specify the methods for documenting the use of behavior support techniques.
12VAC35-46-910. Timeout.
A. The provider shall develop and implement written policies and procedures governing the conditions under which a resident may be placed in timeout and the maximum period of timeout. The conditions and maximum period of timeout shall be based on the resident's chronological and developmental level.
B. 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.
C. A resident in timeout shall be able to communicate with staff.
D. 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.
E. Use of timeout and staff checks on the residents shall be documented.
12VAC35-46-920. Prohibitions.
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. Limitation on contacts and visits with the resident's attorney, a probation officer, regulators, or placing agency representative;
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. Delay or withholding of incoming or outgoing mail, except as permitted by other applicable state and federal regulations or by order of a court of competent jurisdiction;
5. Any action that is humiliating, degrading, or abusive;
6. Corporal punishment;
7. Subjection to unsanitary living conditions;
8. Deprivation 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;
9. Deprivation of health care;
10. Deprivation of appropriate services and treatment;
11. Application of aversive stimuli, except as permitted pursuant to other applicable state regulations;
12. 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;
13. 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; and
14. Limitation on contacts and visits with advocates employed by the department or the Virginia Office for Protection and Advocacy.
12VAC35-46-930. Pharmacological or mechanical restraints.
A. Use of mechanical restraints is prohibited except as permitted by other applicable state regulations or as ordered by a court of competent jurisdiction.
B. Use of pharmacological restraints is prohibited.
12VAC35-46-940. Behavior interventions.
A. The provider shall develop and implement written policies and procedures for behavioral interventions and for documenting and monitoring the management of resident behavior. Rules of conduct shall be included in the written policies and procedures. These policies and procedures shall:
1. Define and list techniques that are used and available for use in the order of their relative degree of restrictiveness;
2. Specify the staff members who may authorize the use of each technique; and
3. Specify the processes for implementing such policies and procedures.
B. Written information concerning the policies and procedures of the provider's behavioral support and intervention programs 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. This requirement does not apply when a state psychiatric hospital is evaluating a child's treatment needs as provided by the Code of Virginia.
C. When substantive revisions are made to policies and 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 except when a state psychiatric hospital is evaluating a child's treatment needs as provided by the Code of Virginia.
D. The provider shall develop and implement written policies and procedures governing use of physical restraint that 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.
E. All physical restraints shall be reviewed and evaluated to plan for continued staff development for performance improvement.
F. Use of physical restraint shall be limited to that which is minimally necessary to protect the resident or others.
G. Trained staff members may physically restrain a resident only after less restrictive interventions.
H. Only trained staff members may manage resident behavior.
I. Each application of physical restraint shall be fully documented in the resident's record including:
1. Date;
2. Time;
3. Staff involved;
4. Justification for the restraint;
5. Less restrictive interventions that were unsuccessfully attempted prior to using physical restraint;
6. Duration;
7. Description of method or methods of physical restraint techniques used;
8. Signature of the person completing the report and date; and
9. Reviewer's signature and date.
J. Providers shall ensure that restraint may only be implemented, monitored, and discontinued by staff who have been trained in the proper and safe use of restraint, including hands-on techniques.
K. The provider shall review the facility's behavior intervention techniques and policies and procedures at least annually to determine appropriateness for the population served.
L. Any time children are present staff shall be present who have completed all trainings in behavior intervention.
12VAC35-46-950. Seclusion.
Seclusion is allowed only as permitted by other applicable state regulations.
12VAC35-46-960. Seclusion room requirements.
A. The room used for seclusion shall meet the design requirements for buildings used for detention or seclusion of persons.
B. The seclusion room shall be at least six feet wide and six feet long with a minimum ceiling height of eight feet.
C. The seclusion room shall be free of all protrusions, sharp corners, hardware, fixtures, or other devices, that may cause injury to the occupant.
D. Windows in the seclusion room shall be constructed to minimize breakage and otherwise prevent the occupant from harming himself.
E. Light fixtures and other electrical receptacles in the seclusion room shall be recessed or so constructed as to prevent the occupant from harming himself. Light controls shall be located outside the seclusion room.
F. Doors to the seclusion room shall be at least 32 inches wide, shall open outward and shall contain observation view panels of transparent wire glass or its approved equivalent, not exceeding 120 square inches but of sufficient size for someone outside the door to see into all corners of the room.
G. The seclusion room shall contain only a mattress with a washable mattress covering designed to avoid damage by tearing.
H. The seclusion room shall maintain temperatures appropriate for the season.
I. All space in the seclusion room shall be visible through the locked door, either directly or by mirrors.
12VAC35-46-970. Education.
A. Each resident of compulsory school attendance age shall be enrolled, as provided in the Code of Virginia, in an appropriate educational program within five school business days. Documentation of the enrollment shall be kept in the resident's record.
B. The provider shall ensure that educational guidance and counseling in selecting courses is provided for each resident and shall ensure that education is an integral part of the resident's total program.
C. Providers operating educational programs for children with disabilities shall operate those programs in compliance with applicable state and federal statutes and regulations.
D. When a child with a disability has been placed in a residential facility, the facility shall contact the division superintendent of the resident's home locality. Documentation of the contact with the resident's home school shall be kept in the resident's record.
E. A provider that has an academic or vocational program that is not certified or approved by the Department of Education shall document that teachers meet the qualifications to teach the same subjects in the public schools.
F. Each provider shall develop and implement written policies and procedures to ensure that each resident has adequate study time.
12VAC35-46-980. Religion.
A. The provider shall have and implement written policies regarding opportunities for residents to participate in religious activities.
B. The provider's policies on religious participation shall be available to residents and any individual or agency considering placement of a child in the facility.
C. Residents shall not be coerced to participate in religious activities.
12VAC35-46-990. 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;
2. Free time for residents to pursue personal interests that shall be in addition to a formal recreation program, except this subdivision does not apply to secure custody facilities;
3. Use of available community recreational resources and facilities, except this subdivision does not apply to secure custody facilities;
4. Scheduling of activities so that they do not conflict with meals, religious services, educational programs, or other regular events; and
5. Regularly scheduled indoor and outdoor recreational activities that are structured to develop skills and attitudes.
B. The provider shall develop and implement written policies and 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 lifeguard 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/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.
12VAC35-46-1000. Community relationships.
A. Opportunities shall be provided for the residents to participate in activities and to utilize resources in the community.
B. The provider shall develop and implement written policies and procedures for evaluating persons or organizations in the community who wish to associate with residents on the premises or take residents off the premises. The procedures shall cover 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 policies and procedures for promoting positive relationships with the neighbors that shall be approved by the department.
12VAC35-46-1010. Clothing.
A. Provision shall be made for each resident to have an adequate supply of clean, comfortable, 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 children of the same age in the community who are engaged in similar activities, except this requirement does not apply to secure custody facilities.
C. Residents shall have the opportunity to participate in the selection of their clothing, except this requirement does not apply to secure custody facilities.
D. Residents shall be allowed to take personal clothing when leaving the facility.
12VAC35-46-1020. Allowances and spending money.
A. The provider shall provide opportunities appropriate to the ages and developmental levels of the residents for learning the value and use of money.
B. There shall be a written policy regarding allowances that shall be made available to legal guardians at the time of admission.
C. The provider shall develop and implement written policies for safekeeping and for recordkeeping of any money that belongs to residents.
D. A resident's funds, including any allowance or earnings, shall be used for the resident's benefit.
12VAC35-46-1030. 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 program director with the knowledge and consent of the legal guardian.
D. In both work assignments and employment, the program director shall evaluate the appropriateness of the work and the fairness of the pay.
12VAC35-46-1040. Visitation at the facility and to the resident's home.
A. The provider shall have and implement written visitation policies and procedures that allow reasonable visiting privileges and flexible visiting hours, except as permitted by other applicable state regulations.
B. Copies of the written visitation policies and 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 policies and procedures shall be mailed to them within 24 hours after admission.
12VAC35-46-1050. Resident visitation at the homes of staff.
If a provider permits staff to take residents to the staff's home, the facility must receive written permission of the resident's legal guardian or placing agency before the visit occurs. The written permission shall be kept in the resident's record.
12VAC35-46-1060. Vehicles and power equipment.
A. Transportation provided for or used by children shall comply with local, state, and federal laws relating to:
1. Vehicle safety and maintenance;
2. Licensure of vehicles;
3. Licensure of drivers; and
4. Child passenger safety, including requiring children to wear appropriate seat belts or restraints for the vehicle in which they are being transported.
B. There shall be written safety rules for transportation of residents appropriate to the population served that shall include taking head counts at each stop.
C. The provider shall develop and implement written safety rules for use and maintenance of vehicles and power equipment.
12VAC35-46-1070. Serious incident reports.
A. Any serious incident, accident, or injury to the resident; any overnight absence from the facility without permission; any runaway; and any other unexplained absence shall be reported within 24 hours (i) to the placing agency; (ii) to either the parent or legal guardian, or both as appropriate; and (iii) noted in the resident's record.
B. The provider shall document the following:
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 of the person who made the report to the placing agency and to either the parent or legal guardian; and
6. The name of the person to whom the report was made.
C. The provider shall notify the department within 24 hours of any serious illness or injury, any death of a resident, and all other situations as required by the department. Such reports shall include:
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 of the person who made the report to the placing agency and to either the parent or legal guardian; and
6. The name of the person to whom the report was made.
D. In the case of a serious injury or death, the report shall be made on forms approved by the department.
12VAC35-46-1080. Suspected child abuse or neglect.
A. Written policies and procedures related to child abuse and neglect shall be distributed to all staff members. These shall include procedures for:
1. Handling accusations against staff; and
2. Promptly referring, consistent with requirements of the Code of Virginia, suspected cases of child abuse and neglect to the local child protective services unit and for cooperating with the unit during any investigation.
B. Any case of suspected child abuse or neglect shall be reported to the local child protective services unit as required by the Code of Virginia.
C. Any case of suspected child abuse or neglect occurring at the facility, on a facility-sponsored event or excursion, or involving facility staff shall be reported immediately to (i) the Office of Human Rights and placing agency; and (ii) either the resident's parent or legal guardian, or both, as appropriate.
D. When a case of suspected child abuse or neglect is reported to child protective services, the resident's record shall include:
1. The date and time the suspected abuse or neglect occurred;
2. A description of the suspected abuse or neglect;
3. Action taken as a result of the suspected abuse or neglect; and
4. The name of the person to whom the report was made at the local child protective services unit.
12VAC35-46-1090. Grievance procedures.
A. The provider shall develop and implement written policies and procedures governing the handling of grievances by residents. If not addressed by other applicable regulations, the policies and procedures shall:
1. Be written in clear and simple language;
2. Be communicated to the residents in an age or developmentally appropriate manner;
3. Be posted in an area easily accessible to residents and their parents and legal guardians;
4. Ensure that any grievance shall be investigated by an objective employee who is not the subject of the grievance; and
5. Require continuous monitoring by the provider of any grievance to assure there is no retaliation or threat of retaliation against the child.
B. All documentation regarding grievances shall be kept on file at the facility for three years unless other regulations require a longer retention period.
Part V
Disaster or Emergency Planning12VAC35-46-1100. Disaster or emergency planning.
The facility is required to have written procedures to follow in emergencies. It is also required that these plans be known by staff and, as appropriate, residents. It is advisable that the facility develop its emergency plans with the assistance of state or local public safety authorities.
12VAC35-46-1110. Emergency and evacuation procedures.
A. The provider shall develop a written emergency preparedness and response plan for all locations. 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 policies 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, students/intern, 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, students/interns, volunteers, visitors, equipment, and vital records; and restoring services. Emergency response 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 family members, if appropriate, and legal guardians;
g. Alerting emergency personnel and sounding alarms; and
h. Locating and shutting off utilities when necessary;
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, contractors, students/interns, and volunteers that shall include 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. The provider shall document the review of the emergency preparedness plan annually and make necessary revisions. Such revisions shall be communicated to employees, contractors, students, and volunteers and incorporated into training for employees, contractors, students/interns, and volunteers and orientation of residents to services.
D. 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 take appropriate action to remedy the conditions as soon as possible.
E. Employees, contractors, students/interns, and volunteers shall be knowledgeable in and prepared to implement the emergency preparedness plan in the event of an emergency.
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/emergency. After the disaster/emergency is stabilized, the provider shall report the disaster/emergency and the conditions at the facility to the legal guardian and the placing agency as soon as possible of the conditions at the facility and report the disaster/emergency to the department as soon as possible, but no later than 72 hours after the incident occurs.
G. Floor plans showing primary and secondary means of egress shall be posted on each floor in locations where they can easily be seen by staff and residents.
H. The procedures and responsibilities reflected in 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.
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 securing resident emergency information.
K. During any three consecutive calendar months, at least one evacuation drill shall be conducted during each shift.
L. 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.
6. The name of the staff members responsible for conducting and documenting the drill and preparing the record.
M. The record for each evacuation drill shall be retained for three years after the drill, unless a longer retention period is required by applicable law or regulation.
N. 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.
Part VI
Special Programs12VAC35-46-1120. Independent living programs.
A. Each independent living program must demonstrate that a structured program using materials and curriculum, approved by the department, is being used to teach independent living skills. The curriculum must include information regarding each of the following areas:
1. Money management and consumer awareness;
2. Food management;
3. Personal appearance;
4. Social skills;
5. Health/sexuality;
6. Housekeeping;
7. Transportation;
8. Educational planning/career planning;
9. Job-seeking skills;
10. Job maintenance skills;
11. Emergency and safety skills;
12. Knowledge of community resources;
13. Interpersonal skills/social relationships;
14. Legal skills;
15. Leisure activities; and
16. Housing.
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/sexuality;
6. Housekeeping;
7. Transportation;
8. Educational planning/career planning;
9. Job-seeking skills;
10. Job maintenance skills;
11. Emergency and safety skills;
12. Knowledge of community resources;
13. Interpersonal skills/social relationships;
14. Legal skills;
15. Leisure activities; and
16. Housing.
C. The resident's individualized service plan shall, in addition to the requirements found in 12VAC35-105-750, address each of the following areas, as applicable:
1. Money management and consumer awareness;
2. Food management;
3. Personal appearance;
4. Social skills;
5. Health/sexuality;
6. Housekeeping;
7. Transportation;
8. Educational planning/career planning;
9. Job-seeking skills;
10. Job maintenance skills;
11. Emergency and safety skills;
12. Knowledge of community resources;
13. Interpersonal skills/social relationships;
14. Legal skills;
15. Leisure activities; and
16. Housing.
D. Each independent living program shall develop and implement policies and 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 orientation shall be kept in the employee's staff record.
E. 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 policies and procedures that include:
1. Training for the resident in self administration of medication 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.
F. Each independent living program shall develop and implement written policies and procedures that ensure that each resident is receiving adequate nutrition as required in 12VAC35-46-860.
12VAC35-46-1130. Mother/baby programs.
A. Each provider shall develop and implement written policies and procedures to orient direct care staff within 14 days of hire regarding the following:
1. Responsibilities of mothers regarding the child;
2. Child development including age-appropriate behavior for each stage of development;
3. Appropriate behavioral interventions for infants and toddlers;
4. Basic infant and toddler care including but not limited to nutritional needs, feeding procedures, bathing techniques; and
5. Safety issues for infants and toddlers.
B. Each direct care worker shall have certification in infant CPR and first aid prior to working alone with infants or toddlers.
C. A placement agreement shall be signed by the legal guardian for each adolescent mother and a separate placement agreement shall be signed for each child at the time of admission.
D. In addition to the requirements of 12VAC35-46-710 the application for admission for the adolescent's child must include:
1. The placement history of the child;
2. The developmental milestones of the child; and
3. The nutritional needs of the child.
E. In addition to the requirements of 12VAC35-46-660, the face sheet for adolescent's child shall also include:
1. Type of delivery;
2. Weight and length at birth;
3. Any medications or allergies; and
4. Name and address, if known, of the biological father.
F. A combined service plan following the requirements of 12VAC35-46-750 must be written for the adolescent mother and her child within 30 days of the admission of the adolescent's child.
G. There shall be a combined documented review of the adolescent mother's and her child's progress following the requirements of the quarterly report 60 days following the first combined service plan and within each 90-day period thereafter.
H. The developmental milestones of the adolescent's child must be documented in each quarterly progress report.
I. The record of each child 18 months or younger shall include the child's feeding schedule and directions for feeding. This information shall be posted in the kitchen.
J. The provider shall develop and implement written policies and procedures for tracking:
1. What a child 18 months or younger is eating;
2. How much a child 18 months or younger is eating; and
3. The response to newly introduced foods of the child 18 months or younger.
K. The provider shall develop and implement written policies and procedures to record all diaper changes.
L. The provider shall monitor that all infants are held and spoken to and placed in a position to observe activities when they are awake.
M. Bottle-fed infants who cannot hold their own bottles shall be held when fed. Bottles shall not be propped.
N. The provider shall monitor that all children of adolescent mothers have access to age-appropriate toys and are provided opportunity for visual and sound stimulation.
O. The provider shall ensure that when an adolescent mother is in school or is working, her child is appropriately cared for, either in a licensed child day program or at the facility.
P. A daily activity log must be kept for each child of the adolescent mother showing what activities the child actually participated in during the day. The daily log must show that children have the opportunity to participate in sensory, language, manipulative, building, large muscle, and learning activities.
Q. The provider shall develop and implement written policies and procedures regarding health care of the adolescent's child including:
1. Obtaining health care;
2. Ensuring follow-up care is provided;
3. Ensuring adolescent mothers administer to their children only prescription and nonprescription medication authorized by a health care professional licensed to prescribe medication; and
4. Medication administration.
R. The provider shall develop and implement written policies and procedures to ensure that all toys and equipment to be used by children are sturdy, are of safe construction, are nontoxic and free of hazards, and meet industry safety standards.
S. The facility shall develop and implement written policies and procedures for inspecting toys and equipment on a regular basis for cleanliness and safety.
T. Cribs shall be placed where objects outside the crib such as cords from the blinds or curtains are not within reach of infants or toddlers.
U. Pillows and filled comforters shall not be used by children under two years of age.
V. Infant walkers shall not be used.
W. Adolescent mothers and their babies may share a bedroom as allowed by 12VAC35-46-480, but shall not share a room with other adolescents or their children.
X. Pregnant adolescents may share a room as allowed by 12VAC35-46-480.
Y. Providers shall develop and implement written policies and procedures to protect infants, toddlers, and young children from dangers in their environment. The policies and procedures must include but not be limited to protection from:
1. Electrocution;
2. Falling down steps or ramps or gaining access to balconies, porches, or elevated areas; and
3. Poisons, including poisonous plants.
12VAC35-46-1140. Campsite programs or adventure activities.
A. All wilderness campsite programs and providers that take residents on wilderness/adventure activities shall develop and implement policies and 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/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. All wilderness campsite programs and providers that take residents on wilderness/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 shall have experience in and knowledge regarding wilderness activities and be trained in wilderness first aid. The individual shall 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 shall review all trip plans and procedures and shall ensure that staff and residents meet the requirements as outlined in the facility's policy regarding each wilderness/adventure activity to take place during the trip.
C. The trip coordinator shall conduct a posttrip 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.
D. The trip coordinator shall be responsible for writing a summary of the debriefing session and shall be responsible for ensuring that procedures and policies are updated to reflect improvements needed.
E. A trip folder shall be developed for each wilderness/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.
F. 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.
G. 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.
H. Direct care workers hired by wilderness campsite programs and providers that take residents on wilderness/adventure activities shall be trained in a wilderness first aid course.
I. The provider shall ensure that before engaging in any aquatic activity, each resident shall be classified by the trip coordinator or 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.
J. 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.
K. A separate bed, bunk, or cot shall be made available for each person.
L. A mattress cover shall be provided for each mattress.
M. Sleeping areas shall be protected by screening or other means to prevent admittance of flies and mosquitoes.
N. Bedding shall be clean, dry, sanitary, and in good repair.
O. Bedding shall be adequate to ensure protection and comfort in cold weather.
P. Sleeping bags, if used, shall be fiberfill and rated for 0°F.
Q. Linens shall be changed as often as required for cleanliness and sanitation but not less frequently than once a week.
R. 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.
S. Sturdy, water-resistant, outdoor footwear shall be provided for each resident.
T. Each resident shall have adequate personal storage area.
U. 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.
V. Artificial lighting shall be provided in a safe manner.
W. All areas of the campsite shall be lighted for safety when occupied by residents.
X. Staff of the same sex may share a sleeping area with the residents.
Y. A telephone or other means of communication is required at each area where residents sleep or participate in programs.
DOCUMENTS INCORPORATED BY REFERENCE (22VAC40-675)
Report of Tuberculosis Screening, Virginia Department of Health, http://www.vdh.virginia.gov/epidemiology/ DiseasePrevention/Programs/Tuberculosis/Forms/documents/ Form2.pdf, Virginia Department of Health.
U.S. Department of Health and Human Services and U.S. Department of Agriculture Dietary Guidelines for Americans, 6th Edition, January 2005, U.S. Government Printing Office, Washington, D.C.
VA.R. Doc. No. R09-1612; Filed May 22, 2009, 1:15 p.m.
