Title of Regulation: 12VAC35-190. Regulations Establishing Procedures for Voluntarily Admitting Persons Who Are Mentally Retarded to State Mental Retardation Facilities (amending 12VAC35-190-10, 12VAC35-190-21, 12VAC35-190-30, 12VAC35-190-41, 12VAC35-190-51).

Statutory Authority: § 37.2-203 and 37.2-806 of the Code of Virginia.

Effective Date: August 19, 2009.

Agency Contact: Dawn Traver, Office of Developmental Services, Department of Behavioral Health and Developmental Services, P.O. Box 1797, 1220 Bank Street, Richmond, VA 23218-1797, telephone (757) 253-4316, FAX (757) 253-5440, or email dawn.traver@co.dmhmrsas.virginia.gov.

Summary:

This action revises the statutory references to reflect the recent recodification of Title 37.1 to Title 37.2 of the Code of Virginia. Changes are made to definitions of "authorized representative," "case management community services board," "mental retardation" and several other terms for clarity and consistency with the Code of Virginia and other regulations of the board. The application process and requirements are revised to require that the diagnosis of mental retardation be made by a "licensed professional," which is defined in the regulations. The required timeframe for a decision on a request for admission is reduced from 30 to 10 working days from the date of receipt of the completed application package.

Since publication of the proposed regulation some language and terminology is revised for clarity, consistency with the board's other regulations. For example, "case management community services board" is replaced with "community services board." The term "intellectual disability" is inserted in parenthesis after "mental retardation" to be consistent with recent changes to the other regulations of the board. The name Department of Mental Health, Mental Retardation and Substance Abuse Services is replaced with the new name, Department of Behavioral Health and Developmental Services consistent with legislation passed in the 2009 Session of the General Assembly. None of these revisions substantively change the process or the requirements for admissions to state training centers.

Summary of Public Comments and Agency's Response: No public comments were received by the promulgating agency.

CHAPTER 190
REGULATIONS ESTABLISHING PROCEDURES FOR VOLUNTARILY ADMITTING PERSONS WHO ARE MENTALLY RETARDED VOLUNTARY ADMISSIONS TO STATE MENTAL RETARDATION FACILITIES TRAINING CENTERS

12VAC35-190-10. Definitions.

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

"Admission" means [ placement acceptance ] of an individual in a residential facility for individuals with mental retardation as defined in this chapter so that the facility becomes the individual's primary locus of care, treatment, and training center.

"Authorized representative" means a person permitted by law or regulation to authorize the disclosure of information [ and or ] consent to treatment and services, including medical treatment, or the participation in human research on behalf of an individual who lacks the mental capacity to make these decisions.

[ "Case management community services board ] (CSB) [ " or "CSB" means ] a citizens board [ the public body established pursuant to ] § 37.1-195 [ § 37.2-501 of the Code of Virginia that serves the area in which an adult resides or in which a minor's parent, or guardian ] or legally authorized representative [ resides. ] The case management CSB is responsible for case management, liaison with the facility when an individual is admitted to a state training center, and predischarge planning. If an individual, or the parents, guardian or legally authorized representative on behalf of an individual, chooses to reside in a different locality after the individual's discharge from the facility, the community services board serving that locality becomes the case management CSB and works with the original case management CSB, the individual receiving services and the state facility to effect a smooth transition and discharge. [ For the purpose of these regulations, CSB also includes a behavioral health authority established pursuant to § 37.2-602 of the Code of Virginia. ]

"Commissioner" means the Commissioner of the Department of [ Mental Health, Mental Retardation and Substance Abuse Behavioral Health and Developmental ] Services.

[ "Community services board" or "CSB" means the public body established pursuant to § 37.2-501 of the Code of Virginia. For the purpose of these regulations, CSB also includes a behavioral health authority established pursuant to § 37.2-602 of the Code of Virginia. ]

"Discharge plan" or "predischarge plan" means a written plan prepared by the [ case management ] CSB [ providing case management ] in consultation with the state facility training center pursuant to § 37.1-197.1 [ § §§ 37.2-505 and 37.2-837 ] of the Code of Virginia. This plan is prepared when the individual is admitted to the facility training center and documents the [ planning for ] services [ after to be provided upon ] discharge.

"Facility" means a state training center for individuals with mental retardation under the supervision and management of the Commissioner of the Department of Mental Health, Mental Retardation and Substance Abuse Services.

"Guardian" means:

For Minors -- An an adult who is either appointed by the court as a legal guardian of said a minor or exercises the rights and responsibilities of legal custody by delegation from a biological or adoptive parent, upon provisional adoption or otherwise by operation of law.

For Adults -- a person appointed by the court who is responsible for the personal affairs of an incapacitated adult under the order of appointment. The responsibilities may include making decisions regarding the individual's support, care, health, safety, habilitation, education and therapeutic treatment. Refer to definition of "incapacitated person" at § 37.1-134.6 § 37.2-1000 of the Code of Virginia.

"Legally authorized representative" means a person permitted by law or regulations to give informed consent for disclosure of information and give informed consent to treatment, including medical treatment and participation in human research on behalf of an individual who lacks the mental capacity to make these decisions.

"Licensed professional" means a licensed psychologist, licensed professional counselor, or other individual who holds a valid professional license and has appropriate training in intellectual testing.

"Mental retardation" [ ("intellectual disability") ] means substantial subaverage general intellectual functioning which originates during the developmental period and is associated with impairment in adaptive behavior. 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 in conceptual, social, and practical adaptive skills.

[ "Training center" means a facility operated by the Department of Behavioral Health and Developmental Services for the treatment, training, or habilitation of persons with mental retardation (intellectual disability). ]

12VAC35-190-21. Application for admission process.

A. Requests for admission to a facility training center shall be processed through the [ case management ] CSB. A parent, guardian, or legally authorized representative seeking admission to a facility training center for an individual with mental retardation [ (intellectual disability) ] shall apply first to the CSB that serves the area where the applicant individual, or if a minor, his parent, or guardian, or legally authorized representative is currently residing.

B. If the [ case management ] CSB determines that the services for the individual are not available in the community or the individual chooses to obtain services in the state facility training center, the CSB shall forward a prescreening preadmission screening report, pursuant to § 37.1-65.1 B § 37.2-806 B of the Code of Virginia, to the facility training center serving individuals with mental retardation [ (intellectual disability) ] from that geographic section of the state in which the applicant individual or, if a minor, his parent, or guardian, or legally authorized representative is currently residing.

C. The prescreening preadmission screening report shall include at a minimum:

1. An application for services;

2. A medical history indicating the presence of any current medical problems as well as the presence of any known communicable disease. In all cases, the application shall include any currently prescribed medications as well as any known medication allergies;

3. A social history and current status housing or living arrangements; and

4. A psychological evaluation that has been performed in the past three years unless the facility director or designee determines that sufficient information as to the applicant's abilities and needs is included in other reports received; reflects the individual's current functioning.

D. The preadmission screening report shall also include the following, as appropriate:

5. 1. A current individualized education plan for school-aged applicants unless the facility director or designee determines that sufficient information as to the applicant's abilities and needs is included in other reports received; individuals.

6. 2. A vocational assessment for adult applicants unless the facility director or designee determines that sufficient information as to the applicant's abilities and needs is included in other reports received; and adults.

7. 3. A completed discharge plan outlining the services to be provided upon discharge and anticipated date of discharge.

[ 4. A statement from the individual, family member, or authorized representative requesting services in the training center. ]

12VAC35-190-30. Determination of suitability Criteria for admission.

A. Within 30 working days from the receipt of the completed prescreening report, the director of the facility, or his designee, shall notify the case management CSB in writing of the determination on the admission request.

B. Determination of suitability A. Upon the receipt of a completed preadmission screening report, the director of the training center or designee shall determine eligibility for admission by the director shall be based upon the following criteria and shall be so stated in his written decision:

1. The individual has a primary diagnosis of mental retardation [ (intellectual disability) ];

2. The diagnosis of mental retardation has been made by an interdisciplinary team of qualified mental retardation professionals upon review of the completed prescreening report a licensed professional; and

3. The facility training center has available space, training, treatment, and habilitation services appropriate and service capacity to meet the needs of the individual.

B. If the director finds that admission is not appropriate, he shall state the reasons in a written decision and may recommend an alternative location for needed services.

C. If the director finds that the applicant is not suitable for admission to the facility, he shall state the reasons for his decision and may recommend alternative locations for needed services. Within 10 working days from the receipt of the completed preadmission screening report, the director of the training center or designee shall provide the written decision on the admission request to the [ case management ] CSB.

12VAC35-190-41. Requests for reconsideration of the director's determination.

In the event that (i) the [ case management ] CSB making the request for admission, or (ii) a person seeking admission to a facility, the parent, guardian, or authorized representative applying on behalf of an individual disagrees with the determination of the director, the CSB, or person seeking admission, or both [ they either party ] may request a reconsideration of the determination by submitting a request in writing to the commissioner within 10 working days of receiving such determination. Upon receipt of a request for reconsideration, the commissioner shall notify the facility training center director and the facility training center director shall forward the prescreening preadmission screening report package and related information to the commissioner within 48 hours. The commissioner shall also provide an opportunity for the person individual requesting reconsideration to submit for review any additional information or reasons why the admission should be approved. The commissioner shall render a written decision on the request for reconsideration within 30 calendar days of the receipt of the request and notify all involved parties. The commissioner's decision shall be binding.

12VAC35-190-51. Procedure for admission Judicial certification.

Upon receipt of written notification from the facility training center director that an individual is suitable eligible for admission, the [ case management ] CSB will shall inform the individual or and the individual's parent, guardian, or legally authorized representative of this decision and assist the parent, guardian, or legally authorized representative in initiating a judicial proceeding pursuant to § 37.1-65.1 § 37.2-806 of the Code of Virginia. When the judge has certified that the individual is eligible for admission to a facility training center in accordance with subsection C3 of § 37.1-65.1 § 37.2-806 F of the Code of Virginia, a date for admission to the facility will training center shall be established.