4 Petitions for Rulemaking

PETITIONS FOR RULEMAKING

Vol. 26 Iss. 23 - July 19, 2010

TITLE 12. HEALTH

STATE BOARD OF BEHAVIORAL HEALTH AND DEVELOPMENTAL SERVICES

Agency Decision

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

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

Name of Petitioner: Steven Shoon.

Nature of Petitioner's Request: Amend 12VAC35-115-30 to (i) add statements to the definitions of "department" and "provider" that exclude the Department of Corrections and (ii) remove the Department of Corrections exclusion from the definitions of "abuse" and "neglect."

Agency Decision: Take no action.

Statement of Reason for Decision: The definitions of "abuse" and "neglect" in § 37.2-100 of the Code of Virginia includes the Department of Corrections exclusion. Therefore, the provisions of 12VAC35-115-30 referenced in this petition should not be changed as requested.

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

VA.R. Doc. No. R10-54; Filed July 1, 2010, 9:14 a.m.

Agency Decision

Title of Regulation: 12VAC35-115. 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.

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

Name of Petitioner: Steven Shoon.

Nature of Petitioner's Request: Amend 12VAC35-115-30 to change the phrase "mental health, mental retardation, and substance abuse services" to "behavioral health and developmental services" in the definitions of "community services board" and "neglect."

Agency Decision: Take no action.

Statement of Reason for Decision: The definitions of "community services board" and "neglect" in § 37.2-100 of the Code of Virginia contain the phrase "mental health, mental retardation, and substance abuse services."

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

VA.R. Doc. No. R10-55; Filed July 1, 2010, 9:14 a.m.

Agency Decision

Title of Regulation: 12VAC35-115. 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.

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

Name of Petitioner: Steven Shoon.

Nature of Petitioner's Request: Amend 12VAC35-115-10 to remove the adjectives "public or private" to describe "providers" as redundant and remove the phrase "excluding the Department of Corrections," which appears twice in this section.

Agency Decision: Take no action.

Statement of Reason for Decision: The Department of Corrections exclusion reflects the current provisions of the Code of Virginia. The inclusion of the adjectives "public or private" is not redundant.

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

VA.R. Doc. No. R10-56; Filed July 1, 2010, 9:14 a.m.

Agency Decision

Title of Regulation: 12VAC35-115. 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.

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

Name of Petitioner: Steven Shoon.

Nature of Petitioner's Request: Amend 12VAC35-115-70 B 8 b (3) by (i) creating a new subparagraph, 12VAC35-115-70 B 8 b (4), based on commitment status (Chapter 11 and 11.1); (ii) leaving the information related to commitments under Chapter 11 in 12VAC35-115-70 B 8 b (3); and (iii) providing additional information for commitments under Chapter 11.1 in a new subparagraph, 12VAC35-115-70 B 8 b (4) as follows:

a) The 2003 Guidelines For The Management of Individuals Found Not Guilty By Reason of Insanity (NGRI Manual) does not make the statement on how and when the Forensics Review Panel (FRP) reviews annual reports and their recommendations for disposition,

b) The NGRI Manual makes the statement that completing the privilege process is the criteria for the FRP approving the treatment team's submission to the court recommending release,

c) The NGRI Manual does not state whether the packet for conditional release or unconditional release is an annual report or a report for clinical findings attached to and in support of the Commissioner's petition for release,

d) The NGRI Manual does not state the Commissioner's statutory function within the statute on Annual Continuation of Confinement Hearings (§ 19.2-182.5 B of the Code of Virginia), which the FRP approval requirement derives its statutory authority from, for attaching itself to the submission of annual reports with recommendations other than continued hospitalization,

e) The NGRI Manual states the FRP reviews treatment team submissions recommending release without declaring whether treatment team submissions are annual reports or reports for clinical findings attached to and in support of the Commissioner's petition for release,

f) The NGRI Manual makes the statement that the NGRI acquittees may request release, resulting in the acquittee's need for inpatient hospitalization, and

g) The NGRI Manual does not state that the annual report recommending release results in the court of committing jurisdiction ordering a second evaluation to assess and report on the NGRI acquittee's need for inpatient hospitalization.

Agency Decision: Take no action.

Statement of Reason for Decision: The Department of Behavioral Health and Developmental Services and state operated facilities have many internal policies and procedures including the NGRI Manual. Internal policies are tools for managing day-to-day operations that are more specific and easier to amend or change than a regulation. Such policies must be in compliance with related regulations.

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

VA.R. Doc. No. R10-57; Filed July 1, 2010, 9:14 a.m.

Agency Decision

Title of Regulation: 12VAC35-115. 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.

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

Name of Petitioner: Steven Shoon.

Nature of Petitioner's Request: Amend 12VAC35-115-90 to prohibit physicians or clinical psychologists involved in denying or limiting an individual's access to his service record from selecting second evaluators to review the denial of the individual's request to access his service record.

Agency Decision: Take no action.

Statement of Reason for Decision: The regulations require the provider to designate a physician or clinical psychologist who is not directly involved in the denial to review the decision to deny access.

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

VA.R. Doc. No. R10-58; Filed July 1, 2010, 9:14 a.m.

Agency Decision

Title of Regulation: 12VAC35-115. 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.

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

Name of Petitioner: Steven Shoon.

Nature of Petitioner's Request: Amend 12VAC35-115-60 to only allow providers to return discharged individual's mail to senders when the providers do not have the discharged individual's address and the providers have made every attempt to ascertain the discharged individual's current address without success.

Agency Decision: Take no action.

Statement of Reason for Decision: The return of a discharged individual's mail is best dealt with in the provider's policy.

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

VA.R. Doc. No. R10-59; Filed July 1, 2010, 9:14 a.m.

Agency Decision

Title of Regulation: 12VAC35-115. 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.

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

Name of Petitioner: Steven Shoon.

Nature of Petitioner's Request: Establish a new regulation requiring all providers receiving public funding to physically post Freedom of Information Act (FOIA) information.

Agency Decision: Take no action.

Statement of Reason for Decision: All providers can post such information. Requiring the posting of FOIA information is beyond the intended scope of 12VAC35-115-10. The petitioner could direct this request to the Virginia Freedom of Information Advisory Council.

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

VA.R. Doc. No. R10-60; Filed July 1, 2010, 9:14 a.m.